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Board of Governors of the Federal Reserve System (“Board”).
Final rule.
The Board is adopting a final rule to implement the conformance period during which banking entities and nonbank financial companies supervised by the Board must bring their activities and investments into compliance with the prohibitions and restrictions on proprietary trading and relationships with hedge funds and private equity funds imposed by section 619 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”). Section 619 is commonly referred to as the “Volcker Rule.” The final rule is similar to the proposal issued for comment in November 2010. The Board, however, has incorporated a number of changes to the final rule to address issues raised by public commenters, to reduce potential regulatory burdens, and to clarify application of the rule.
The final rule is effective on April 1, 2011.
Brian P. Knestout, Senior Attorney, (202) 452-2249, Jeremy R. Newell, Senior Attorney, (202) 452-3239, Christopher M. Paridon, Senior Attorney, (202) 452-3274, or Kieran J. Fallon, Associate General Counsel, (202) 452-5270, Legal Division; David K. Lynch, Division of Banking Supervision and Regulation, Board of Governors of the Federal Reserve System, 20th Street and Constitution Avenue, NW., Washington, DC 20551. Users of Telecommunication Device for Deaf (TDD) only, call (202) 263-4869.
The Dodd-Frank Act was enacted on July 21, 2010.
The Board and several other agencies have responsibilities with respect to the Volcker Rule. As required by the Dodd-Frank Act, the FSOC recently issued a study of the Volcker Rule, which included several recommendations regarding the implementation of its prohibitions and restrictions.
The Board, however, is solely charged with adopting rules to implement the provisions of the Volcker Rule that provide a banking entity or a nonbank financial company supervised by the Board a period of time after the effective date of the Volcker Rule to bring the activities, investments, and relationships of the banking entity or company that were commenced, acquired, or entered into before the Volcker Rule's effective date into compliance with the Volcker Rule and the agencies' implementing regulations.
In November 2010, the Board requested public comment on a proposed rule that would implement the conformance period provisions of the Volcker Rule.
The Board received 12 comments on the proposed rule. Commenters included financial trade associations, banking entities, individuals, and a member of Congress. In general, commenters supported the proposed rule but recommended one or more changes to specific provisions of the proposal. A majority of the commenters focused on the 5-year extended transition period available to banking entities to the extent necessary to fulfill a contractual obligation in place on May 1, 2010, to take or retain an interest in a hedge fund or private equity fund that qualifies as an “illiquid fund” under the Volcker Rule. For example, some commenters suggested that the Board broaden its definition of “illiquid assets,” which is used in determining whether a hedge fund or private equity fund is an illiquid fund. Others requested that the Board lower the proposed rule's requirement that at least 75 percent of a fund's assets be invested in “illiquid assets” (either as of May 1, 2010, or on a future date) in order for the fund to qualify for the extended transition period. Many commenters also asserted that the proposed rule's definition of when a banking entity has a “contractual obligation” to invest or remain invested in an illiquid fund was too narrow and would limit the number of hedge funds and private equity funds that could take advantage of the extended transition period for illiquid funds.
Some commenters also asked that the Board, in the final rule, address several aspects of the Volcker Rule that were not covered by the proposal. For instance, some commenters requested that the final rule state that section 13 of the BHC Act does not prohibit insurance companies from conducting their normal business operations, or does not prohibit foreign companies from engaging in prohibited proprietary trading in the securities of U.S. companies if such trades were booked outside of the United States.
Additionally, some commenters addressed the procedural aspects of the proposed rule governing the receipt and review of applications for an extension of the conformance period. For example, some commeters requested that the rule permit the Board to grant all possible extensions to a banking entity at a single time. Other commenters suggested that the final rule permit banking entities to submit a request for extension well in advance of the date an extension might be needed, and expressly provide for a standard time period for the Board to review any extension requests. The comments received on the proposed rule are discussed in greater detail in the following parts of this
In developing this final rule, the Board has carefully considered the comments received on the proposal, as well as the language and legislative history of the Volcker Rule, and the Board's experience in supervising and regulating banking entities' trading activities and investments in, or relationships with, hedge funds and private equity funds. The Board also consulted with the Department of the Treasury, the OCC, the FDIC, the SEC, and the CFTC.
After this review, the Board has determined to adopt a final rule that is substantially similar to the proposed rule. However, in response to comments, the Board has modified the proposed rule in a number of respects. For example, the Board has—
• Expanded the conditions under which an asset may be considered an “illiquid asset” to include situations where an asset is subject to a contractual restriction on sale or redemption for a period of 3 years or more;
• Broadened the types of documents that may be considered in determining whether a hedge fund or private equity fund is “contractually committed” to principally invest in illiquid assets or whether a banking entity that has sponsored a hedge fund or private equity fund is “contractually obligated” to invest or remain invested in the fund;
• Extended, from 90 days to 180 days, the number of days in advance a request for an extension of the conformance period by a specific company must be filed with the Board; and
• Clarified that the Board expects to act on extension requests within 90 days from receipt of a complete record.
These changes as well as the Board's responses to the comments received are discussed in greater detail below.
The final rule does not address definitional or other aspects of the Volcker Rule that are subject to, or more appropriately addressed as part of, the separate interagency rulemaking to be conducted under section 13(b)(2) of the BHC Act.
The prohibitions and restrictions of the Volcker Rule do not take effect until the earlier of July 21, 2012, or 12 months after the issuance of final regulations by the rulewriting agencies under section 13(b)(2) of the BHC Act. However, in order to allow the markets and firms to adjust to these prohibitions and restrictions, the Volcker Rule, by its terms and without any action by the Board, provides banking entities and nonbank financial companies supervised by the Board an additional conformance period during which the entity or company can wind down, sell, or otherwise conform its activities, investments, and relationships to the requirements of the Volcker Rule. Under the statute, this conformance period generally extends through the date that is 2 years after the date on which the prohibitions become effective or, in the case of a nonbank financial company supervised by the Board, 2 years after the company is designated by the FSOC for supervision by the Board, if that period is later.
Section 225.181(a) of the final rule implements these provisions. In addition, section 225.181(a)(2) of the final rule clarifies how the conformance period applies to a company that first becomes a banking entity after July 21, 2010 (the date of enactment of the Dodd-Frank Act), because, for example, the company acquires or becomes affiliated with an insured depository institution for the first time. In these circumstances, the restrictions and prohibitions of the Volcker Rule would first become effective with respect to the company only at the time it became a banking entity. Accordingly, the final rule (like the proposal) provides that such a company generally must bring its activities, investments, and relationships into compliance with the requirements of the Volcker Rule before the later of: (i) The date the Volcker Rule's prohibitions would otherwise become effective with respect to the company under section 225.181(a)(1) of the rule; or (ii) 2 years after the date on which the company first becomes a banking entity. Thus, for example, a company that first becomes a banking entity on January 1, 2015, would have until January 1, 2017, to bring its activities and investments into conformance with the requirements of section 13 of the BHC Act and its implementing regulations. In this way, the final rule provides comparable treatment to “new” banking entities and nonbank financial companies supervised by the Board, and is consistent with the manner in which newly established bank holding companies are treated for purposes of the nonbanking restrictions under section 4 of the BHC Act.
The Volcker Rule also permits the Board, by rule or by order, to extend the generally available two-year conformance period by up to three additional one-year periods, for an aggregate conformance period of 5 years.
Several commenters requested that the Board modify the rule to allow the Board to grant a banking entity at one time all three of the one-year extensions potentially available under section 13(c)(2) of the BHC Act.
Several commenters requested that the Board clarify that the final rule provides a conformance period for both investments in hedge funds and private equity funds and activities prohibited under the Volcker Rule. The general conformance period (including any extension thereof) is available to both banking entities and nonbank financial companies supervised by the Board for activities commenced prior to the Volcker Rule's effective date and applies to any activities, investments and relationships that may be prohibited or restricted by the Volcker Rule.
Section 619 of the Dodd-Frank Act includes a special provision to address the difficulty banking entities may experience in conforming investments in illiquid funds. This provision expressly permits a banking entity to request the Board's approval for an additional extension of up to 5 years in order to permit the banking entity to meet contractual commitments in place as of May 1, 2010, to a hedge fund or private equity fund that qualifies as an “illiquid fund.” Specifically, the statute provides that the Board may extend the period during which a banking entity may take or retain an ownership interest in, or otherwise provide additional capital to, an illiquid fund, but only if the extension is necessary to allow the banking entity to fulfill a contractual obligation that was in effect on May 1, 2010.
As provided in the Volcker Rule, the Board may grant a banking entity only one extended transition period with respect to any illiquid fund, which may not exceed 5 years.
Section 225.181(b) of the final rule implements the statute's extended transition period for illiquid funds.
As noted above, the extended transition period under section 13(c)(3) of the BHC Act is available only with respect to investments made in an “illiquid fund,” and then only with respect to investments in or obligations to these funds made as of May 1, 2010. In accordance with the language of the Volcker Rule, the final rule retains the definition of an “illiquid fund” to mean a hedge fund or private equity fund that: (i) As of May 1, 2010, was principally invested in illiquid assets,
a. “
The final rule, like the proposal, generally defines an “illiquid asset” as any asset that is not a liquid asset. In turn, the final rule defines “liquid assets” to include:
• Cash or cash equivalents;
• Any asset that is traded on a recognized, established exchange, trading facility or other market on which there exist independent, bona fide offers to buy and sell so that a price reasonably related to the last sales price or current bona fide competitive bid and offer quotations can be determined for the asset almost instantaneously;
• Any asset for which there are bona fide, competitive bid and offer quotations in a recognized inter-dealer quotation system or similar system or for which multiple dealers furnish bona fide, competitive bid and offer quotations to other brokers and dealers on request;
• Any asset the price of which is quoted routinely in a widely disseminated publication that is readily available to the general public or through an electronic service that provides indicative data from real-time financial networks;
• Any asset with an initial term of one year or less and the payments on which at maturity may be settled, closed-out, or paid in cash or one or more other liquid assets described above; and
• Any other asset that the Board determines, based on all the facts and circumstances, is a liquid asset.
These standards are designed to capture the wide range of instruments and assets (or their equivalents) that one actively or routinely trades on markets or trading facilities, or for which bid, offer or price quotations are widely available. For example, these standards would treat as a liquid asset: (i) Equity and debt securities, derivatives, and commodity futures traded on a registered securities exchange, board of trade, alternative trading system, electronic trading platform or similar market that provides independent, bona fide offers to buy and sell; (ii) assets traded on an electronic inter-dealer quotation system, such as OTC Bulletin Board or the system maintained by PINK OTC Markets, Inc., as well as over-the-counter derivatives, debt securities (such as corporate bonds), and syndicated commercial loans for which active inter-dealer markets exist; and (iii) financial instruments for which indicative price data is supplied by an electronic service, such as Markit Group Limited.
The standards contained in the second, third, and fourth standards above are based on existing standards in the Federal banking and securities laws that are designed to identify securities that are liquid and may be sold promptly at a price that is reasonably related to its fair value. Specifically, the second standard above is based in part on the SEC's definition of securities for which a “ready market” exists for purposes of the net capital rules applicable to broker-dealers under the Securities Exchange Act of 1934 (“Exchange Act”).
The fifth standard is designed to capture instruments with a relatively short (one year or less) duration and that can be monetized or converted at maturity into a liquid asset. In light of these features, the Board believes it is appropriate to treat such instruments as liquid assets for purposes of the Volcker Rule's conformance period. The final rule recognizes that there may be situations where other, non-enumerated assets may be liquid even though they are not included in the standards contained in sections 225.181(h)(1)-(5) of the final rule. In order to address these situations, the Board has expressly retained the ability to determine that any other asset is a liquid asset, based on all the facts and circumstances.
On the other hand, consistent with the language of the Volcker Rule, the definition of illiquid assets in the final rule should generally encompass investments made by hedge funds or private equity funds in privately-held portfolio companies, real estate (other than those made through publicly traded REITs), and venture capital opportunities, as well as investments in other hedge funds or private equity funds where such investments do not qualify as liquid assets.
In addition, the final rule, like the proposed rule, provides that an asset—including a liquid asset such as a security—may be considered an “illiquid asset” if, because of statutory or regulatory restrictions applicable to the hedge fund, private equity fund or asset, the asset cannot be offered, sold, or otherwise transferred by the hedge fund or private equity fund to a person that is unaffiliated with the banking entity. This exception to the general “liquid asset” definition recognizes that funds frequently acquire assets that are normally liquid in transactions that cause the asset to be subject to one or more statutory or regulatory restrictions under the Federal securities laws that temporarily prohibit the transferability or resale of the security. For example, hedge funds or private equity funds often acquire equity securities in private transactions that result in the security being subject to restrictions on resale (such as under Rule 144A of the Securities Act of 1933).
Similarly, the proposed rule also provided that an asset would be considered illiquid only for so long as the relevant statutory or regulatory restriction was applicable. In light of the foregoing, as well as the forward-looking nature of the “principally invested” and “contractually committed” to principally invest in illiquid assets tests discussed below, the Board has removed those provisions of the proposal. Accordingly, assets subject to the type of statutory, regulatory, or contractual restrictions specified in the final rule would generally be considered illiquid assets for purposes of the Volcker Rule. However, because these restrictions may lapse at a future date (including prior to the point in time when a banking entity submits its request for an extended transition period), the final rule has been modified to specifically provide that, in connection with its review of a banking entity's request for an extended transition period, the Board will consider the extent to which the fund's current assets are no longer illiquid (
Some commenters requested that the Board broaden the definition of “illiquid assets” to specifically include assets that would otherwise meet the rule's definition of a liquid asset, but that the relevant fund may have difficulty selling (or selling at a price the fund believes to be reasonable) because the size of the fund's position in the security or instrument is large relative to daily trading volume in the security or instrument or the outstanding number of securities or instruments of the same class or type. Some commenters also requested that the rule provide the Board flexibility to determine, on a case-by-case basis, that an asset that otherwise meets the definition of a liquid asset was illiquid. Similarly, some commenters asked that the rule specifically provide that a liquid asset could be considered illiquid due to adverse market conditions that might make it difficult for the fund to sell the security or instrument or sell it at a price the fund believes is reasonable.
The Board recognizes that market conditions (including trading volumes) at the time a security or instrument is being sold may have a material effect on the price of the security or instrument. However, by including only investments in portfolio companies, real estate investments, and venture capital investments as examples of illiquid assets, the Volcker Rule itself suggests that the term “illiquid asset” was intended to encompass only those types of investments that are illiquid by their nature, rather than those that may be illiquid due only to prevailing market conditions or the size of a particular fund's holdings of the security or instrument. This intent is reinforced by the fact that the statute requires that a banking entity determine whether a hedge fund or private equity fund is an illiquid fund as of May 1, 2010.
b.
The statute's fund-related criteria also require that the hedge fund or private equity fund either (1) have been principally invested in illiquid assets as of May 1, 2010, or (2) have been invested to some degree in illiquid assets and contractually committed to principally invest in illiquid assets as of such date. In addition, in either case, the fund must make all of its investments pursuant to, and consistent with, an investment strategy to principally invest in illiquid assets. The proposed rule provided that a hedge fund or private equity fund would be considered to be “principally invested” in illiquid assets if at least 75 percent of the fund's consolidated total assets are, or were expected to be, comprised of illiquid assets or risk-mitigating hedges entered into in connection with, and related to, individual or aggregated positions in, or holdings of, illiquid assets. The proposal allowed a fund to count risk-mitigating hedging positions that are related to the fund's holdings of illiquid assets towards the 75 percent asset test because such positions are, by definition, associated with the fund's illiquid holdings.
Commenters supported the inclusion of risk-mitigating hedging positions related to illiquid assets in the determination of whether a fund is “principally invested” in illiquid assets.
The Board continues to believe that 75 percent is an appropriate threshold for determining whether a fund is “principally invested” in illiquid assets for purposes of the Volcker Rule. As noted in the proposed rule, many types of hedge funds and private equity funds have investment strategies that focus almost exclusively on one type of illiquid assets, such as real estate or start-up companies (including new or emerging companies in the technology, life sciences, alternative energy, or “clean tech” areas).
As the courts have recognized, statutory terms must be read in light of the purposes of the relevant statutory provision and, thus, the same or similar terms may appropriately be interpreted differently when used in different acts.
As noted above, by the terms of the statute, a fund qualifies as an illiquid fund if, as of May 1, 2010, it (i) was “principally invested in illiquid assets,” or (ii) was invested in illiquid assets to some degree and contractually committed to principally invest in illiquid assets. In addition, the fund must actually make all of its investments (including investments made after May 1, 2010,) pursuant to and consistent with an investment strategy to principally invest in illiquid assets.
The final rule provides that the determination of whether a fund was “principally invested” in illiquid assets as of May 1, 2010, must be made based on the fund's financial statements prepared in accordance with U.S. Generally Accepted Accounting Principles (“GAAP”) or other applicable accounting standards. Several commenters noted that funds often prepare their financial statements at the end of each calendar quarter and, thus, may not have financial statements dated as of May 1, 2010. In recognition of this, a banking entity may use a fund's most recent financial statements prepared under GAAP or other appropriate accounting standards as of any date between February 28, 2010, and May 1, 2010, to determine whether the fund was principally invested in illiquid assets as of May 1, 2010. Thus, if a fund prepares financial statements at the end of each calendar quarter, the banking entity could use the fund's financial statements as of March 30, 2010, to determine whether the fund was principally invested in illiquid assets as of May 1, 2010 (assuming the fund did not prepare additional financial statements between March 30 and May 1, 2010).
Under the proposed rule, a fund would have been considered to be “contractually committed to principally invest” in illiquid assets as of May 1, 2010, if the fund's organizational documents (such as the limited partnership agreement in the case of a fund organized in this manner), or other documents that constitute a contractual obligation of the fund (such as a binding side letter agreement entered into with investors) that was in effect as of May 1, 2010, provided for the fund to be principally invested in illiquid assets. The proposed rule would have required that any such contractual commitments require the fund to be principally invested in illiquid assets during the period beginning on the date when capital contributions are first received by the fund for the purpose of making investments and ending on the fund's expected termination date. Additionally, the proposed rule provided that a fund would be considered to have an “investment strategy to principally invest” in illiquid assets if the fund either: (i) markets or holds itself out to investors as intending to principally invest in illiquid assets; or (ii) has a documented investment policy of principally investing in illiquid assets.
The Board has made several changes to the corresponding provisions of the final rule in response to comments received on the proposal. First, the Board has modified the final rule to provide that, in determining whether a fund is contractually committed to principally invest, or has an investment strategy to principally invest, in illiquid assets, a banking entity may take into account written representations contained in the fund's offering documents regarding its investment obligations and strategy (in addition to the fund's organizational documents). Funds typically are bound to comply with any written representations contained in the fund's private placement memorandum or other offering documents and a fund's failure to do so may subject the fund to liability under the Federal securities laws.
Second, the final rule has been modified so that a fund will be
Several commenters also asked that the Board clarify when the determination of whether a fund is “contractually committed to principally invest” in illiquid assets must be made and how such determination should be made with respect to investments not yet made. The Volcker Rule expressly provides that the determination of whether a fund is “contractually committed to principally invest” in illiquid assets is to be made “as of May 1, 2010.”
In considering whether a hedge fund or private equity fund's organizational documents, marketing materials, or investment policy provide for the fund to principally invest in illiquid assets, banking entities should consider whether the assets to be acquired by the fund (as specified in such materials) are of the type and nature that would make the assets “illiquid assets” or “liquid assets” for purposes of the rule. For example, if a fund's investment strategy provides for the fund to primarily invest in publicly traded stocks or OTC derivatives that are regularly bought and sold in the inter-dealer market, the fund would not be considered to have an investment strategy to principally invest in illiquid assets. This would be the case even if the fund's investment strategy did not indicate that the assets acquired by the fund must be traded on a recognized exchange, trading facility, or market of the type described in section 225.180(h)(2) or quoted on inter-dealer systems of the type described in section 225.180(h)(3). On the other hand, a fund generally would be considered to have an investment policy of principally investing in illiquid assets if the fund's organizational documents or offering materials provide for the fund to invest in the equity of early-stage nonpublic companies, even if the fund's documents do not specify that the equity of such companies must not be traded or quoted in the manner described in section 225.180(h)(2)-(4). This would be true even if such investments may later be converted into publicly traded securities of the company (such as, for example, in connection with an initial public offering of the company) in order to facilitate the fund's sale of the investment.
Besides meeting the criteria described above, a banking entity's interest in a hedge fund or private equity fund may qualify for the extended transition period in section 13(c)(3) of the BHC Act only if the banking entity's retention of that ownership interest in the fund, or provision of additional capital to the fund, is necessary to fulfill a contractual obligation of the banking entity that was in effect on May 1, 2010.
The proposed rule provided that a banking entity would be considered to have a “contractual obligation” to remain invested in a fund only if the banking entity, under the contractual terms of its equity, partnership, or other ownership interest in the fund or other contractual arrangements with the fund that were in effect as of May 1, 2010, is prohibited from both: (i) Redeeming all of its equity, partnership, or other ownership interests in the fund; and (ii) selling or otherwise transferring all such ownership interests to a person that is not an affiliate of the banking entity. Similarly, the proposed rule specified that a banking entity has a contractual obligation to provide additional capital to an illiquid fund only if the banking entity is required, under the contractual terms of its equity, partnership, or other ownership interest in the fund or other contractual arrangements with the fund (such as a side letter with the fund that is binding on the banking entity) that were in effect as of May 1, 2010, to provide additional capital to the fund. The proposal also provided that either of the contractual obligations described above will be considered not to impose a contractual obligation to invest or remain invested for purposes of the Volcker Rule if: (i) The obligation may be terminated by the banking entity or any of its subsidiaries or affiliates; or (ii) the obligation may be terminated with the consent of other persons unless the banking entity and its subsidiaries and affiliates have used their reasonable best efforts to obtain such consent and such consent has been denied.
The Board received a number of comments on these aspects of the proposal. For example, some commenters noted that a banking entity's contractual obligation to remain invested in a fund may be subject to one or more contractual provisions whereby the obligation may be excused or otherwise terminated if the banking entity's compliance with the obligation would cause, or would be reasonably likely to cause, the banking entity or the fund to be in violation of applicable laws or regulations (so-called “regulatory-out” provisions). Commenters requested that the final rule permit a banking entity to qualify for the extended transition period and remain invested in an illiquid fund despite such regulatory-out provisions. These commenters asserted that otherwise the purpose of the extended transition period would not be fulfilled because those banking entities that exercised prudence in obtaining regulatory outs in their agreements with illiquid funds would be forced to exit these investments and could not take advantage of the Volcker Rule's extended transition period for illiquid funds. These commenters also asserted that such forced sales could have adverse consequences on the banking entity, other investors in the fund, or the markets for illiquid assets.
In addition, some commenters requested that the Board strike the provisions of the final rule that provide that the extended transition period automatically terminates upon expiration of the banking entity's contractual obligation to remain invested in, or provide capital to, an illiquid fund. One commenter specifically requested that the final rule provide a 6-month “grace period” which would allow a banking entity to conform its investment in and relationship with an illiquid fund upon termination of the extended transition period. Several commenters also requested that the final rule allow a banking entity to use “commercially reasonable efforts” instead of “reasonable best efforts” to obtain any consents or approvals necessary to terminate the banking entity's contractual obligation to a fund, and allow the banking entity to remain
The Board has carefully considered these comments. The plain language of the Volcker Rule permits a banking entity to potentially receive an extended transition period with respect to an investment in an illiquid fund only if and to the extent necessary to fulfill a contractual obligation that was in effect on May 1, 2010.
If, pursuant to the terms of its obligation in effect on May 1, 2010, a banking entity has the contractual right to terminate its investment or commitments to an illiquid fund because such investments would be prohibited by the Volcker Rule after the expiration of the general conformance period (and any extensions thereof), then an extended transition period would not be necessary to fulfill the banking entity's contractual obligation to the fund because the banking entity could legally withdraw from its investments or commitments without violating its contractual obligation at the end of the general conformance period (and any extensions thereof). Thus, the Board does not believe the statute permits it to grant an extended transition period to a banking entity if its contractual obligation in place on May 1, 2010, permits the banking entity to terminate those obligations because they would violate the Volcker Rule after the end of the general conformance period (and any extensions thereof).
Whether a banking entity has the right to withdraw its investments or terminate its obligations to an illiquid fund based on the contractual provisions in effect on May 1, 2010, will depend on the specific terms of those obligations. For example, if those obligations provide the banking entity the right and ability to redeem or sell its investment if the banking entity determines that continued ownership of the investment would violate the Volcker Rule, the banking entity must exercise that right no later than the end of the Volcker Rule's general conformance period and any extensions thereof and should begin to plan for such actions. In some instances, however, the banking entity's right or ability to redeem or sell its investments under a regulatory-out provision pertaining to its obligations in effect as of May 1, 2010, may be dependent on the consent of an unaffiliated party (such as the general partner or other investors of the fund).
As noted above, the statute provides that the extended transition period is only available to banking entities in order to take or retain an interest in an illiquid fund, and then only to the extent necessary to fulfill a contractual obligation that was in effect on May 1, 2010. The Board recognizes that there may be instances where, in connection with its ownership interest in an illiquid fund, a banking entity serves as the general partner or managing member of, or otherwise “sponsors,” an illiquid fund. In such situations, a banking entity will usually hold some ownership interest in the fund, and that ownership interest may be in excess of the de minimis interest permitted under the Volcker Rule.
As noted above, the Volcker Rule does not prohibit nonbank financial companies supervised by the Board from engaging in proprietary trading, or from having the types of investments in or relationships with hedge funds or private equity funds that banking entities are prohibited or restricted from having under the Volcker Rule. However, the Volcker Rule provides that the Board or other appropriate agency impose additional capital charges, quantitative limits, or other restrictions on nonbank financial companies supervised by the Board or their subsidiaries that are engaged in such activities or maintain such relationships.
The proposed rule also addressed the process for banking entities and nonbank financial companies supervised by the Board to request a one-year extension of the general conformance period and for banking entities to request up to a five-year extended transition period with respect to an illiquid fund. The proposed rule generally required that any request for an extension must: (1) Be submitted in writing to the Board at least 90 days prior to the expiration of the applicable time period; (2) provide the reasons why the banking entity or nonbank financial company supervised by the Board believes the extension should be granted; and (3) provide a detailed explanation of the plan of the banking entity of nonbank financial company supervised by the Board for divesting or conforming the activity or investment(s). The proposed rule also described the factors that the Board may consider in reviewing any requests for an extension.
The Board received several comments on the procedures for requesting an extension and the standards for reviewing these requests set forth in the proposed rule. In general, commenters requested that the Board allow a firm to submit an extension request well in advance of the end of the applicable time period. Commenters noted that winding down the activities and operations subject to the restrictions of the Volcker Rule could take significant time, and, as a result, companies subject to the Volcker Rule would benefit from knowing as early as possible whether or not they had been granted an extension. Some commenters additionally suggested that the Board modify the final rule to expressly provide for a standard time period for its review of any specific extension request, accompanied by an automatic approval of an extension if the review was not completed in the specified period. One commenter suggested that the Board require banking entities to provide extensive information on the steps that the banking entity has taken to conform to the requirements of the Volcker Rule.
Several comments also addressed the proposed rule's list of factors that the Board would take into account in reviewing any request for a conformance period extension. For example, commenters suggested that the Board take into account the impact that an extension (or denial of an extension) related to investments in a hedge fund or private equity fund would have on unaffiliated, third-party investors in the fund, including the potential creation of conflicts of interest between a banking entity that sponsored a private equity or hedge fund and other investors in such fund.
After considering the comments, the Board has modified the provisions governing the submission and review of extension requests in several respects. First, the final rule provides that a banking entity or nonbank financial company supervised by the Board seeking an extension of the conformance period must submit its request at least 180 days prior to the expiration of the applicable time period, rather than 90 days as proposed. This additional period is designed to provide the Board additional time to review any submission, as well as to request additional information from the requesting company if necessary or appropriate. This deadline is the date by which an extension request must be filed. Firms are encouraged to submit their extension requests to the Board as early as possible. If additional requests are contemplated as being necessary after a permissible extension has been granted, a banking entity or nonbank financial company supervised by the Board may submit an additional request after the first day of the newly-extended period, and the Board would consider each request submitted in accordance with the procedures contained in the final rule. The final rule also provides that the Board will seek to act on any extension request no later than 90 days after receipt of all necessary information relating to the request.
The proposed rule provided that, in reviewing a request for an extension, the Board may consider all the facts and circumstances related to the activity, investment, or fund, including each of the following factors (to the extent they are relevant): (i) Whether the activity or investment (A) involves or results in material conflicts of interest between the banking entity (or nonbank financial company supervised by the Board) and its clients, customers or counterparties; (B) would result, directly or indirectly, in a material exposure by the banking entity (or company) to high-risk assets or high-risk trading strategies; (C) would pose a threat to the safety and soundness of the banking entity (or company); or (D) would pose a threat to the financial stability of the United States; (ii) market conditions; (iii) the nature of the activity or investment; (iv) the date that the banking entity's contractual obligation to make or retain an investment in the fund was incurred and when it expires; (v) the contractual terms governing the banking entity's interest in the fund; (vi) the degree of control held by the banking entity over investment decisions of the fund; (vii) the types of assets held by the fund; (viii) the date on which the fund is expected to wind up its activities and liquidate or its investments may be redeemed or sold; (ix) the total exposure of the banking entity (or company) to the activity or investment and the risks that disposing of, or maintaining, the investment or activity may pose to the banking entity (or company); (x) the cost to the banking entity (or company) of disposing of the activity or investment within the applicable period; and (xi) any other factor that the Board believes appropriate
After consideration of the comments, the Board has modified one existing factor and added two additional factors to this list. The first additional factor is whether divestiture or conformance of the activity or investment would involve or result in a material conflict of interest between the banking entity (or nonbank financial company supervised by the Board) and unaffiliated clients, customers, or counterparties to which the banking entity owes a duty. Because the Volcker Rule is intended to help prevent material conflicts of interest between a banking entity or nonbank financial company supervised by the Board and its clients, customers or counterparties, the Board believe this is an appropriate factor to consider in reviewing extension requests.
As noted in the proposed rule, the Board expects to carefully review requests for an extended transition period to ensure that the banking entity's interest in the fund and the fund's assets and investment strategy satisfy the requirements contained in the rule in order to be eligible for an extended transition period. As noted above in Part III.C.1.a of this
The final rule retains the proposed rule's provision that allows the Board to impose conditions on any extension granted if the Board determines such conditions are necessary or appropriate to protect the safety and soundness of banking entities or the financial stability of the United States, address material conflicts of interest or other unsound practices, or otherwise further the purposes of section 13 of the BHC Act and the final rules.
In accordance with the Paperwork Reduction Act of 1995 (“PRA”),
Sections 225.181(c) and 225.182(c) of the final rule contain collections of information that are subject to the PRA. The OMB control number for these information collections will be assigned. These collections of information would only be required for banking entities and nonbank financial companies supervised by the Board that voluntarily decide to seek an extension of time to conform their activities to the Volcker Rule or divest their interest in an illiquid hedge fund or private equity fund. As discussed in the
In connection with the proposal, the Board estimated that there were approximately 7,200 banking entities as of December 31, 2009. Of that number, the Board estimated that approximately 720 banking entities would request an extension of the conformance period under the proposed rule. The number of nonbank financial companies supervised by the Board will be determined by the FSOC in accordance with the procedures established under the Dodd-Frank Act. Accordingly, the Board was unable and remains unable at this time to estimate the number of nonbank financial companies supervised by the Board that might request an extension of the Volcker Rule conformance period under the proposed rule. In the proposal, the Board estimated the burden request as 1 hour, for a total estimated amount of annual burden of 720 hours.
Some commenters asserted that the Board's proposal underestimated the regulatory burden and stated that it would take substantially longer than one hour to prepare a request for an extension and relevant supporting information. One commenter specifically noted that a banking entity could potentially be required to submit up to four extension requests with respect to a single illiquid fund (three requests for extension of the general conformance period and one request for the extended transition period provided for illiquid funds). In light of the comments received, the Board has revised its estimated burden per request to be 3 hours, and estimates that each of the 720 banking entities that are estimated to request an extension will file, on average, 10 requests for an extension, for a total estimated annual burden of 21,600 hours.
In accordance with Section 4(a) of the Regulatory Flexibility Act, 5 U.S.C. 601
The Volcker Rule, adopted as a new section 13 of the BHC Act, applies to all banking entities and nonbank financial companies supervised by the Board, regardless of size. The Board is amending Regulation Y to implement the provisions of the Dodd-Frank Act that allow a banking entity—including a small banking entity—or a nonbank financial company supervised by the Board to obtain, with the Board's approval, an extended period of time to conform its activities and investments to the requirements of the Volcker Rule. Under the rule, a banking entity of any size may request up to three one-year extensions of the general two-year conformance period provided under section 13 of the BHC Act, as well as one extension of up to five years to divest certain ownership interests in a hedge fund or private equity fund that qualifies as an “illiquid fund” under the statute and proposed rule. The
Under regulations issued by the Small Business Administration (“SBA”), a bank or other depository institution is considered “small” if it has $175 million or less in assets.
As discussed in the
Section 722 of the Gramm-Leach-Bliley Act requires the Federal banking agencies to use plain language in all proposed and final rules published after January 1, 2000. The Board invited comment on whether the proposed rule was written plainly and clearly, or whether there were ways the Board could make the rule easier to understand. The Board received no comments on these matters and believes that the final rule is written plainly and clearly.
Administrative practice and procedure, Banks, Banking, Holding companies, Reporting and recordkeeping requirements, Securities.
For the reasons stated in the preamble, the Board is amending Regulation Y, 12 CFR part 225, as set forth below:
12 U.S.C. 1817(j)(13), 1818, 1828(o), 1831i, 1831p-1, 1843(c)(8), 1844(b), 1851, 1972(1), 3106, 3108, 3310, 3331-3351, 3907, and 3909; 15 U.S.C. 6801 and 6805.
(c) * * *
(11)
For purposes of this subpart:
(a)
(1) Any insured depository institution;
(2) Any company that controls an insured depository institution;
(3) Any company that is treated as a bank holding company for purposes of section 8 of the International Banking Act of 1978; and
(4) Any affiliate or subsidiary of any of the foregoing entities.
(b)
(c)
(1) All or substantially all of the deposits of such institution are in trust funds and are received in a bona fide fiduciary capacity;
(2) No deposits of such institution which are insured by the Federal Deposit Insurance Corporation are offered or marketed by or through an affiliate of such institution;
(3) Such institution does not accept demand deposits or deposits that the depositor may withdraw by check or similar means for payment to third parties or others or make commercial loans; and
(4) Such institution does not—
(i) Obtain payment or payment related services from any Federal Reserve bank, including any service referred to in section 11A of the Federal Reserve Act (12 U.S.C. 248a); or
(ii) Exercise discount or borrowing privileges pursuant to section 19(b)(7) of the Federal Reserve Act (12 U.S.C. 416(b)(7)).
(d)
(e)
(f)
(1) As of May 1, 2010—
(i) Was principally invested in illiquid assets; or
(ii) Was invested in, and contractually committed to principally invest in, illiquid assets; and
(2) Makes all investments pursuant to, and consistent with, an investment strategy to principally invest in illiquid assets.
(g)
(1) Is not a liquid asset;
(2) Because of statutory or regulatory restrictions applicable to the hedge fund, private equity fund or asset, cannot be offered, sold, or otherwise transferred by the hedge fund or private equity fund to a person that is unaffiliated with the relevant banking entity; or
(3) Because of contractual restrictions applicable to the hedge fund, private equity fund or asset, cannot be offered, sold, or otherwise transferred by the hedge fund or private equity fund for a period of 3 years or more to a person that is unaffiliated with the relevant banking entity.
(h)
(1) Cash or cash equivalents;
(2) An asset that is traded on a recognized, established exchange, trading facility or other market on which there exist independent, bona fide offers to buy and sell so that a price reasonably related to the last sales price or current bona fide competitive bid and offer quotations can be determined for the particular asset almost instantaneously;
(3) An asset for which there are bona fide, competitive bid and offer quotations in a recognized inter-dealer quotation system or similar system or for which multiple dealers furnish bona fide, competitive bid and offer quotations to other brokers and dealers on request;
(4) An asset the price of which is quoted routinely in a widely disseminated publication that is readily available to the general public or through an electronic service that provides indicative data from real-time financial networks;
(5) An asset with an initial term of one year or less and the payments on which at maturity may be settled, closed-out, or paid in cash or one or more other liquid assets described in paragraphs (h)(1), (2), (3), or (4); and
(6) Any other asset that the Board determines, based on all the facts and circumstances, is a liquid asset.
(i)
(1) Is
(i) Illiquid assets; or
(ii) Risk-mitigating hedges entered into in connection with and related to individual or aggregated positions in, or holdings of, illiquid assets;
(2) Is
(3) Has an
(i) Markets or holds itself out to investors as intending to principally invest in assets described in paragraph (i)(1) of this section; or
(ii) Has a documented investment policy of principally investing in assets described in paragraph (i)(1) of this section.
(a)
(i) July 21, 2012; or
(ii) Twelve months after the date on which final rules adopted under section 13(b)(2) of the Bank Holding Company Act (12 U.S.C. 1851(b)(2)) are published in the
(2)
(i) The conformance date determined in accordance with paragraph (a)(1) of this section; or
(ii) Two years after the date on which the company becomes a banking entity or a subsidiary or affiliate of a banking entity.
(3)
(b)
(i) The fund is an illiquid fund; and
(ii) The acquisition or retention of such interest, or provision of additional capital, is necessary to fulfill a contractual obligation of the banking entity that was in effect on May 1, 2010.
(2)
(i) May not exceed 5 years beyond any conformance period granted under paragraph (a)(3) of this section; and
(ii) Shall terminate automatically on the date during any such extension on which the banking entity is no longer under a contractual obligation described in paragraph (b)(1)(ii).
(3)
(i) A banking entity has a contractual obligation to take or retain an equity, partnership, or other ownership interest in an illiquid fund if the banking entity is prohibited from redeeming all of its equity, partnership, or other ownership interests in the fund, and from selling or otherwise transferring all such ownership interests to a person that is not an affiliate of the banking entity—
(A) Under the terms of the banking entity's equity, partnership, or other ownership interest in the fund or the banking entity's other contractual arrangements with the fund or unaffiliated investors in the fund; or
(B) If the banking entity is the sponsor of the fund, under the terms of a written representation made by the banking entity in the fund's offering materials distributed to potential investors;
(ii) A banking entity has a contractual obligation to provide additional capital to an illiquid fund if the banking entity is required to provide additional capital to such fund—
(A) Under the terms of its equity, partnership or other ownership interest in the fund or the banking entity's other contractual arrangements with the fund or unaffiliated investors in the fund; or
(B) If the banking entity is the sponsor of the fund, under the terms of a written representation made by the banking entity in the fund's offering materials distributed to potential investors; and
(iii) A banking entity shall be considered to have a contractual obligation for purposes of paragraph (b)(3)(i) or (ii) of this section only if—
(A) The obligation may not be terminated by the banking entity or any of its subsidiaries or affiliates under the terms of its agreement with the fund; and
(B) In the case of an obligation that may be terminated with the consent of other persons, the banking entity and its subsidiaries and affiliates have used their reasonable best efforts to obtain such consent and such consent has been denied.
(c)
(1) Submit a request in writing to the Board at least 180 days prior to the expiration of the applicable time period;
(2) Provide the reasons why the banking entity believes the extension should be granted, including information that addresses the factors in paragraph (d)(1) of this section; and
(3) Provide a detailed explanation of the banking entity's plan for divesting or conforming the activity or investment(s).
(d)
(i) Whether the activity or investment—
(A) Involves or results in material conflicts of interest between the banking entity and its clients, customers or counterparties;
(B) Would result, directly or indirectly, in a material exposure by the banking entity to high-risk assets or high-risk trading strategies;
(C) Would pose a threat to the safety and soundness of the banking entity; or
(D) Would pose a threat to the financial stability of the United States;
(ii) Market conditions;
(iii) The nature of the activity or investment;
(iv) The date that the banking entity's contractual obligation to make or retain an investment in the fund was incurred and when it expires;
(v) The contractual terms governing the banking entity's interest in the fund;
(vi) The degree of control held by the banking entity over investment decisions of the fund;
(vii) The types of assets held by the fund, including whether any assets that were illiquid when first acquired by the fund have become liquid assets, such as, for example, because any statutory, regulatory, or contractual restrictions on the offer, sale, or transfer of such assets have expired;
(viii) The date on which the fund is expected to wind up its activities and liquidate, or its investments may be redeemed or sold;
(ix) The total exposure of the banking entity to the activity or investment and the risks that disposing of, or maintaining, the investment or activity may pose to the banking entity or the financial stability of the United States;
(x) The cost to the banking entity of divesting or disposing of the activity or investment within the applicable period;
(xi) Whether the divestiture or conformance of the activity or investment would involve or result in a material conflict of interest between the banking entity and unaffiliated clients, customers or counterparties to which it owes a duty;
(xii) The banking entity's prior efforts to divest or conform the activity or investment(s), including, with respect to an illiquid fund, the extent to which the banking entity has made efforts to terminate or obtain a waiver of its contractual obligation to take or retain an equity, partnership, or other ownership interest in, or provide additional capital to, the illiquid fund; and
(xiii) Any other factor that the Board believes appropriate.
(2)
(3)
(e)
(2)
(a)
(b)
(c)
(1) Submit a request in writing to the Board at least 180 days prior to the expiration of the applicable time period;
(2) Provide the reasons why the nonbank financial company supervised by the Board believes the extension should be granted; and
(3) Provide a detailed explanation of the company's plan for conforming the activity or investment(s) to any applicable requirements established under section 13(a)(2) or (f)(4) of the Bank Holding Company Act (12 U.S.C. 1851(a)(2) and (f)(4)).
(d)
(2)
(f)
Federal Aviation Administration (FAA), DOT.
Final special conditions; request for comments.
These special conditions are issued for the Gulfstream GVI airplane. This airplane will have a novel or unusual design feature associated with a head-up display (HUD) system modified to display forward-looking infrared (FLIR) imagery. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
The effective date of these special conditions is February 3, 2011. We must receive your comments by March 31, 2011.
You must mail two copies of your comments to: Federal Aviation Administration, Transport Airplane Directorate, Attn: Rules Docket (ANM-113), Docket No. NM443, 1601 Lind Avenue, SW., Renton, Washington, 98057-3356. You may deliver two copies to the Transport Airplane Directorate at the above address. You must mark your comments: Docket No. NM443. You can inspect comments in the Rules Docket weekdays, except Federal holidays, between 7:30 a.m. and 4 p.m.
Dale Dunford, FAA, Airplane and Flight Crew Interface Branch, ANM-111, Transport Standards Staff, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 227-2239; facsimile (425) 227-1320.
The FAA has determined that the substance of these special conditions has been subject to the public-comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance.
We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.
We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel about these special conditions. You can inspect the docket before and after the comment closing date. If you wish to review the docket in person, go to the address in the
We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.
If you want us to acknowledge receipt of your comments on these special conditions, include with your comments a self-addressed, stamped postcard on which you have written the docket number. We will stamp the date on the postcard and mail it back to you.
On March 29, 2005, Gulfstream Aerospace Corporation (hereafter referred to as “Gulfstream”) applied for an FAA type certificate for its new Gulfstream Model GVI passenger airplane. Gulfstream later applied for, and was granted, an extension of time for the type certificate, which changed the effective application date to September 28, 2006. The Gulfstream Model GVI airplane will be an all-new, two-engine jet transport airplane with an executive cabin interior. The maximum takeoff weight will be 99,600 pounds, with a maximum passenger count of 19 passengers.
Under provisions of Title 14 Code of Federal Regulations (14 CFR) 21.17, Gulfstream must show that the Gulfstream Model GVI airplane (hereafter referred to as “the GVI”) meets the applicable provisions of 14 CFR part 25, as amended by Amendments 25-1 through 25-119, 25-122 and 25-124. If the Administrator finds that the applicable airworthiness regulations (
In addition to complying with the applicable airworthiness regulations and special conditions, the GVI must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36. The FAA must also issue a finding of regulatory adequacy pursuant to section 611 of Public Law 92-574, the “Noise Control Act of 1972.”
The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.17(a)(2).
Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design features, the special conditions would also apply to the other model under provisions of § 21.101.
The enhanced flight vision system (EFVS) is a novel or unusual design feature because it projects a video image derived from a forward-looking infrared (FLIR) camera through the head-up display (HUD). The EFVS image is projected in the center of the “pilot compartment view,” which is governed by § 25.773. The image is displayed with HUD symbology and overlays the forward outside view. Therefore, § 25.773 does not contain appropriate safety standards for the EFVS display.
Operationally, during an instrument approach, the EFVS image is intended to enhance the pilot's ability to detect and identify “visual references for the intended runway” (
Scene contrast detected by infrared sensors can be much different from that detected by natural pilot vision. On a dark night, thermal differences of objects which are not detectable by the naked eye will be easily detected by many imaging infrared systems. On the other hand, contrasting colors in visual wavelengths may be distinguished by the naked eye but not by an imaging infrared system. Where thermal contrast in the scene is sufficiently detectable, the pilot can recognize shapes and patterns of certain visual references in the infrared image. However, depending on conditions, those shapes and patterns in the infrared image can appear significantly different than they would with normal vision. Considering these factors, the EFVS image needs to be evaluated to determine that it can be accurately interpreted by the pilot.
The image may improve the pilot's ability to detect and identify items of interest. However, the EFVS needs to be evaluated to determine that the imagery allows the pilot to perform the normal duties of the flight crew and adequately see outside the window through the image, consistent with the safety intent of § 25.773(a)(2).
Compared to a HUD displaying the EFVS image and symbology, a HUD that displays only stroke-written symbols is easier to see through. Stroke symbology illuminates a small fraction of the total display area of the HUD, leaving much of that area free of reflected light that could interfere with the pilot's view out the window through the display. However, unlike stroke symbology, the video image illuminates most of the total display area of the HUD (approximately 30 degrees horizontally and 25 degrees vertically) which is a significant fraction of the pilot compartment view. The pilot cannot see around the larger illuminated portions of the video image but must see the outside scene through it.
Unlike the pilot's external view, the EFVS image is a monochrome, two-dimensional display. Many, but not all, of the depth cues found in the natural view are also found in the image. The quality of the EFVS image and the level of EFVS infrared sensor performance could depend significantly on conditions of the atmospheric and external light sources. The pilot needs adequate control of sensor gain and image brightness, which can significantly affect image quality and transparency (
Hence, safety standards are needed for each of the following factors:
Section 25.773, “Pilot Compartment View,” specifies that “Each pilot compartment must be free of glare and reflection that could interfere with the normal duties of the minimum flight crew. * * *” In issuing § 25.773, the FAA did not anticipate the development of EFVSs and does not consider § 25.773 to be adequate to address the specific issues related to such a system. Therefore, the FAA has determined that special conditions are needed to address the specific issues particular to the installation and use of an EFVS.
The EFVS is intended to function by presenting an enhanced view during the approach. This enhanced view would help the pilot to see and recognize external visual references, as required by § 91.175(l), and to visually monitor the integrity of the approach, as
Based on this functionality, users would seek to obtain operational approval to conduct approaches, including approaches to Type I runways, when the runway visual range is as low as 1,200 feet.
The purpose of these special conditions is to ensure that the EFVS to be installed can perform the following functions:
Depending on the atmospheric conditions and the particular visual references that happen to be distinctly visible and detectable in the EFVS image, these functions would support its use by the pilot to visually monitor the integrity of the approach path.
Compliance with these special conditions does not affect the applicability of any of the requirements of the operating regulations (
The FAA certification of this EFVS is limited as follows:
An EFVS image may provide an enhanced image of the scene that may compensate for any reduction in the clear outside view of the visual field framed by the HUD combiner. The pilot must be able to use this combination of information seen in the image and the natural view of the outside scene seen through the image as safely and effectively as the pilot would use a § 25.773 compliant pilot compartment view without an EVS image. This is the fundamental objective of the special conditions.
The FAA will also apply additional certification criteria, not as special conditions, for compliance with related regulatory requirements, such as §§ 25.1301 and 25.1309. These additional criteria address certain image characteristics, installation, demonstration, and system safety.
Image characteristics criteria include the following:
Installation criteria address visibility and access to EFVS controls and integration of EFVS in the cockpit.
The EFVS demonstration criteria address the flight and environmental conditions that need to be covered.
The FAA also intends to apply certification criteria relevant to high intensity radiated fields (HIRF) and lightning protection.
As discussed above, these special conditions are applicable to the GVI. Should Gulfstream apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.
This action affects only certain novel or unusual design features on one model of airplane. It is not a rule of general applicability.
The substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, the FAA has determined that prior public notice and comment are unnecessary, and good cause exists for adopting these special conditions upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Gulfstream GVI airplanes.
1. Enhanced flight vision system (EFVS) imagery on the head-up display (HUD) must not degrade the safety of flight or interfere with the effective use of outside visual references for required pilot tasks during any phase of flight in which it is to be used.
2. To avoid unacceptable interference with the safe and effective use of the pilot compartment view, the EFVS device must meet the following requirements:
(a) The EFVS design must minimize unacceptable display characteristics or artifacts (e.g. noise, “burlap” overlay, running water droplets, etc.) that obscure the desired image of the scene, impair the pilot's ability to detect and identify visual references, mask flight hazards, distract the pilot, or otherwise degrade task performance or safety.
(b) Control of EFVS display brightness must be sufficiently effective, in dynamically changing background (ambient) lighting conditions, to prevent full or partial blooming of the display that would distract the pilot, impair the pilot's ability to detect and identify visual references, mask flight hazards, or otherwise degrade task performance or safety. If automatic control for image brightness is not provided, it must be shown that a single manual setting is satisfactory for the range of lighting conditions encountered during a time-critical, high workload phase of flight (
(c) A readily accessible control must be provided that permits the pilot to immediately deactivate and reactivate display of the EFVS image on demand without removing the pilot's hands from the primary flight controls (yoke or equivalent) or thrust control.
(d) The EFVS image on the HUD must not impair the pilot's use of guidance information or degrade the presentation and pilot awareness of essential flight information displayed on the HUD, such as alerts, airspeed, attitude, altitude and direction, approach guidance, wind shear guidance, TCAS resolution
(e) The EFVS image and the HUD symbols (which are spatially referenced to the pitch scale, outside view, and image), must be scaled and aligned (
(f) A HUD system used to display EFVS images must, if previously certified, continue to meet all of the requirements of the original approval.
3. The safety and performance of the pilot tasks associated with the pilot compartment view must be not be degraded by the display of the EFVS image. Pilot tasks which must not be degraded by the EFVS image include:
(a) Detection, accurate identification and maneuvering, as necessary, to avoid traffic, terrain, obstacles, and other hazards of flight.
(b) Accurate identification and utilization of visual references required for every task relevant to the phase of flight.
4. Appropriate limitations must be stated in the operating limitations section of the airplane flight manual to prohibit the use of the EFVS for functions that have not been found to be acceptable.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action modifies the Cleveland, OH, Class B airspace area by expanding the existing airspace area to ensure containment of all published instrument procedures and the aircraft flying those instrument procedures within Class B airspace, and segregation of Instrument Flight Rules (IFR) aircraft arriving/departing Cleveland-Hopkins International Airport (CLE) and non-participating Visual Flight Rules (VFR) aircraft operating in the vicinity of the Cleveland Class B airspace area. The additional Class B airspace will support simultaneous arrival and departure operations under VFR conditions and simultaneous IFR approaches during marginal VFR conditions using Precision Runway Monitor/Simultaneous Offset Instrument Approaches (PRM/SOIA). Geographic coordinates listed in the description are also updated to reflect current aeronautical database information. This action enhances safety, improves the flow of air traffic, and reduces the potential for midair collision in the Cleveland terminal area.
Colby Abbott, Airspace, Regulations, and ATC Procedures Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591;
On April 20, 2010, the FAA published in the
Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal. In response to the NPRM, the FAA received 14 written comment submissions, including comments from Aircraft Owners and Pilots Association (AOPA) and the Soaring Society of America (SSA). Two comments received were duplicate documents submitted by two different commenters. Many of the commenters identified themselves as pilots who operate within, or through, the local area. All comments received were considered before making a determination on the final rule. An analysis of the comments received and the FAA's responses are contained in the “Discussion of Comments” section below.
Subsequent to the NPRM publication, typographical errors were identified for two geographic coordinates proposed in the Area E description published in the regulatory text. The geographic coordinates that were published as “lat. 42°47′20″ N., long. 81°27′36″ W.” in the NPRM should have been “lat. 41°47′20″ N., long. 81°27′36″ W.”, and the geographic coordinates that were published as “lat. 42°40′43″ N., long. 81°38′13″ W.” should have been “lat. 41°40′43″ N., long. 81°38′13″ W.”. The geographic coordinate errors are corrected in this action.
The AOPA cited the work of the FAA in developing this rule. They support the proposed modifications and appreciate the common sense approach the FAA adopted to include only that airspace required for the containment of arrivals and departures at CLE. Further, AOPA applauded the FAA's efforts to address and mitigate concerns raised by general aviation pilots regarding access to the airports affected by the redesign.
Seven commenters objected to proposed Areas F and G. They argued the FAA proposed these areas significantly larger than required or presented previously. Six of the commenters wanted the lateral dimensions of the areas reduced to only five nautical mile (NM) extensions in length by five NM in width. One commenter argued that federal airways are established with four NM lateral widths from a radial of a navigation aid and that the FAA should reduce the widths of the areas to four NM also. Three commenters wanted Areas F and
The FAA does not agree. For clarity, the lateral dimensions of Areas F and G as proposed in the NPRM are 10 NM in length, extending from the CLE Runway 24L ILS/DME antenna (I-HPI) 20 NM arc to the I-HPI 30 NM arc. The areas are 6 NM in width, from the CLE Runway 6R localizer (I-CLE) signal extended to 6 NM north of the Runway 6L localizer (I-LIZ) signal extended for Area F and from the I-CLE signal extended to 6 NM south of the Runway 6R localizer (I-EYU) signal extended for Area G. These lateral dimensions were determined to be the absolute minimum essential to control IFR aircraft arriving from multiple arrival streams that are being sequenced in the traffic patterns for Precision Runway Monitor/Simultaneous Offset Instrument Approaches (PRM/SOIA) procedures into CLE. The length of these areas ensures the 15 to 18 percent of IFR aircraft arrivals that currently enter, exit, and re-enter the CLE Class B airspace (as noted in the NPRM) are fully contained within Class B airspace once they enter the traffic patterns to intercept the final approach course and the PRM/SOIA procedures. During periods of moderate and heavy traffic, aircraft may be turned onto the PRM/SOIA finals as far as 25 NM to 30 NM from CLE, as is the case today. The width of these areas ensures IFR arrival aircraft conducting PRM/SOIA are contained within Class B airspace while flying in the traffic patterns and are safely separated, in accordance with aircraft separation standards and guidance, between non-participating VFR aircraft that may be flying along the boundaries of Areas F and G and IFR aircraft flying the instrument approach procedures to Runways 6L/6R. To reduce the lateral dimensions (length or width) of the Areas F or G Class B airspace extensions would be impractical.
For the same reasons as discussed above, the FAA has determined the request to consider eliminating Areas F and G if they cannot be reduced in size is also impractical. The extensions are necessary in the interest of flight safety to contain all the instrument approach procedures and the IFR aircraft flying those procedures at CLE within Class B airspace, as well as segregate the IFR aircraft and non-participating VFR aircraft flying in the vicinity of the CLE Class B airspace area.
The FAA acknowledges the benefits of using visual landmarks for defining airspace boundaries and does so when possible. However, there are no prominent landmarks in the areas needed to mark the lateral boundaries of Areas F and G. Using the landmarks that the commenters noted would not define the minimum airspace needed as addressed above. Since there were no visual landmarks to define the boundaries of Areas F and G, the FAA used arcs and radials from existing CLE navigation aids to define them.
Eight commenters suggested the split floor altitudes proposed for Areas F and G (5,000 feet mean sea level (MSL) and 6,000 feet MSL, respectively) would cause confusion and probably some inadvertent Class B airspace incursions. The commenters stated the split level proposed design still presented a safety infringement to the glider operations at Reader-Botsford airport (67D) and offered multiple recommendations for changing the floor altitudes to remedy their concerns. Two commenters recommended raising the floor of Areas F and G to 6,000 feet MSL and 7,000 feet MSL, respectively; two commenters recommended making both floor altitudes 6,000 feet MSL; and three commenters recommended raising the Area G floor only to 7,000 feet MSL.
The FAA does not agree and has determined it is not possible to raise the floor altitude of either area without impacting the operational efficiency of the PRM/SOIA into CLE. Again, for clarity, the vertical dimensions of Areas F and G as proposed in the NPRM are from 5,000 feet MSL to and including 8,000 feet MSL for Area F and from 6,000 feet MSL to and including 8,000 feet MSL for Area G. Initially, the Class B airspace extension to the southwest in the same airspace proposed as Areas F and G was designed as a single area with a floor altitude of 5,000 feet MSL. After receiving public input from the ad hoc committee and public comments following the informal airspace meetings recommending the configuration proposed, the subdivision and altitudes of the two areas were proposed using the minimum amount of airspace necessary to contain PRM/SOIA procedures to Runways 6L/6R at CLE.
Aircraft flying PRM/SOIA procedures cannot be assigned the same altitude during turn-on to the final approach course; they must be assigned an altitude that differs by at least 1,000 feet from the altitude of other aircraft conducting simultaneous approaches. Air traffic control must continue to maintain at least 1,000 feet vertical separation between aircraft flying PRM/SOIA procedures until they reach 14 NM from CLE where the actively monitored No Transgression Zone between the approaches begins. Specifically, during an east flow at CLE, aircraft will be turned onto and established on final approach courses at 5,000 feet MSL and 7,000 feet MSL for Runway 6L, and 6,000 feet MSL and 8,000 feet MSL for Runway 6R. For both runways, air traffic controllers may be sequencing aircraft from two or more arrival streams, necessitating the use of multiple altitudes in the arrival descent areas, until lateral separation is established. Under some projected traffic scenarios, multiple altitude downwind patterns will be utilized, with aircraft “layered” by altitude and worked by separate controllers. As the boundary between Areas F and G is based on the extended Runway 6R localizer I-CLE signal, the FAA continues to believe that Class B incursions will not become an issue.
Lastly, as noted in the NPRM, the proposed Areas F and G are expected to provide the gliders operating at 67D with airspace supportive of their operations while at the same time ensuring the integrity of the CLE Class B airspace by containing all instrument procedures and the IFR aircraft flying the procedures at CLE.
Eleven commenters stated that establishing the proposed Areas F and G extension would adversely affect flight safety beneath and in the near vicinity of the extension. The safety concerns cited included compression of general aviation aircraft under the extension where gliders operate, increased potential for mid-air collisions, wake turbulence effects on gliders from heavy aircraft arrivals on approach to CLE, and increased potential for off-field landings by glider pilots as a result of the extension overhead 67D.
The FAA acknowledges that some compression will occur since non-participating VFR general aviation and glider aircraft have their choice of flying either above or below the Class B airspace extension or circumnavigating it further west to remain clear should they decide not to contact the Cleveland Terminal Radar Approach Control (TRACON) facility to receive Class B services. However, establishing the Class B airspace extensions is necessary, consistent with regulatory guidance, to contain all instrument procedures and the IFR turbo-jet aircraft flying the instrument approach procedures within
All aircraft operating beneath or in the vicinity of Areas F and G are expected to continue to comply with the regulatory requirements of Title 14 of the Code of Federal Regulations (14 CFR) § 91.111, titled Operating Near Other Aircraft, to avoid creating a collision hazard with other aircraft operating in the same airspace. Additionally, all aircraft operating in the same areas noted above are expected to continue complying with 14 CFR § 91.113, titled Right-of-Way Rules: Except Water Operations, to “see and avoid” other aircraft as well. The FAA believes that continued general aviation and glider operator compliance with established flight rules regulatory requirements, and these two regulations specifically, will overcome the mid-air collision and wake turbulence concerns raised by the commenters.
Lastly, the FAA acknowledges the concerns of the glider community with the establishment of Class B airspace overhead 67D. However, the design of the Class B airspace extension to the southwest of CLE was minimized to the absolute essential dimensions operationally practical by incorporating the recommendations made by the glider community participating on the ad hoc committee and as requested during the informal airspace meetings. Since the majority of glider operations occur to the south and west of 67D and the redesigned configuration of the Class B airspace extension overlying 67D was raised to 6,000 feet MSL, the FAA believes impacts to local area or cross-country glider flight operation at 67D will be negligible and off-field landing will not be a factor.
The FAA has considered the safety concerns cited above thoroughly and determined they do not negate the need for this action. At the present time, large turbo-jet air carrier, general aviation, and glider aircraft are flying simultaneously in the airspace proposed to become Areas F and G, due to the outdated design of the CLE Class B airspace area. The traffic compression, mid-air collisions, effects of wake turbulence on gliders, and off-field landings concerns raised by the commenters all exist today. Moving forward with the Class B airspace modifications in this action will enhance flight safety for all operators flying within, through, or near the CLE Class B airspace area.
Six commenters stated that the proposed Class B airspace Areas F and G would establish Class B airspace directly over the airspace Fun Country Soaring (FCS) currently flies in and would diminish safe glider operations. The commenters argued that FCS would be forced to consider shutting down its operation or relocating away from 67D. The commenters further suggested that the loss of FCS would create personal financial hardships and result in financial impacts for the owner of 67D and the town of Wellington, OH.
The FAA does not agree. As noted in the NPRM, the initial CLE Class B airspace extension extending to the southwest was proposed from 5,000 feet MSL to 8,000 feet MSL. During the informal airspace meeting held in Wellington, OH, a member of the glider community suggested the airspace extension be split into a north section and a south section whereby the floor of the Class B airspace overlying 67D, where the gliders operate, could be raised to 6,000 feet MSL. This would provide glider operators over 5,000 feet of airspace to maneuver and minimize impacts to glider operations at 67D. Almost half of the comments received following the informal airspace meetings endorsed this recommendation, including the comments received from the Village of Wellington, OH, Administrator. The FAA adopted this suggestion and created Area F and Area G as proposed in the NPRM. Again, since most glider operations occur to the south and west of 67D, the Areas F and G proposed in the NPRM are expected to enable glider operations to continue with negligible impact to local area or cross-country flights. As such, the FCS operation at 67D is not expected to shut down or relocate and the financial impacts to the FCS members, owner of 67D, and town of Wellington, OH, that were alluded to by the commenters responding to the NPRM, would be averted.
Seven commenters questioned the need for the proposed CLE Class B modifications in light of the United and Continental airlines merger. They suggested that the merger would include considerable consolidation and reduction of routes resulting in a lower traffic volume at CLE; making the Class B airspace expansion unnecessary. In addition, one commenter stated further that if the proposed Class B airspace extension areas were being used by air carriers currently, then they did not see the requirement to legislate the exclusion of general aviation flyers by initiating this rulemaking action. In essence they were, arguing this rulemaking action was not needed.
The FAA does not agree. The FAA is taking action to modify the current Class B airspace area to contain all instrument procedures at CLE and the aircraft flying those instrument procedures to and from CLE within Class B airspace, consistent with FAA directives, based on the instrument approach and departure procedures in place today. This action overcomes IFR aircraft entering, exiting, and reentering the CLE Class B airspace area while flying published instrument approach procedures and the associated traffic patterns during arrival. Additionally, this action further enhance flight safety by segregating IFR aircraft flying instrument procedures into CLE and VFR aircraft operating in the vicinity of the CLE Class B airspace. The Class B airspace modifications in this rule represent the minimum airspace needed to reasonably accommodate the current operations, fleet mix, and existing flight tracks at CLE.
AOPA recommended the FAA consider raising the portion of Area B north of the shoreline over Lake Erie from the existing 1,900 feet MSL to 3,000 feet MSL. A second commenter also requested the FAA lift the existing 1,900 feet MSL and 3,000 feet MSL Class B airspace floors over Lake Erie (Areas B and C, respectively), but did not indicate an alternative altitude. Both commenters stated that an alternative to raising the Class B floor altitudes over Lake Erie could be the addition of a VFR flyway. The second commenter also requested the FAA establish a VFR flyway between the eastern Cleveland suburban airports, Cuyahoga County Airport and Burke Lakefront Airport, and the greater Columbus and Cincinnati airports.
The FAA has determined it is not possible to raise the floor altitudes for the CLE Class B airspace areas over Lake Erie, as requested. No modifications were proposed for these areas as the existing airspace structure was deemed sufficient to continue supporting and protecting IFR aircraft departing Runways 6L/6R and VFR aircraft flying along the Lake Erie shoreline. Although the commenters cited safety reasons as the basis for their recommendation and request, there are no known safety issues for that airspace today. The FAA recognizes that raising the CLE Class B Areas B and C airspace floors over Lake Erie would provide VFR pilots additional transit altitudes and airspace over Lake Erie to operate east and west along the shoreline north of Cleveland. However, the Class B airspace in Areas B and C protects the IFR aircraft departing Runways 6L/6R climbing and turning left over Lake Erie to transition
One commenter questioned the adequacy of the air traffic controller and radar resources to safely control and separate the aircraft operating in the vicinity of the proposed Class B airspace Areas E, F, and G. The commenter was specifically concerned that establishing the new Class B airspace extensions without additional resources would increase the number of near mid-air collisions occurring in the airspace below the extensions due to increasing numbers of high performance aircraft skirting beneath the proposed Class B airspace extensions and impacting those aircraft already flying there.
The FAA does not agree. Staffing and equipment resources are already in place and adequate to support the CLE Class B modifications and provide all Class B services without impacting safety or efficiency. The FAA does not expect either to be an issue for CLE. No air traffic control facility airspace sector changes will be required to handle the Class B airspace modifications; hence, the existing number of air traffic controllers assigned is sufficient. Additionally, since there are no changes to the current traffic flows associated with this Class B modification action, the existing radar sites, radar displays, navigation aids and communication equipment is also sufficient. However, should circumstances arise that indicate a need for additional air traffic controller or radar resources, action will be taken to obtain them.
Three commenters stated that the geographic coordinates [latitude/longitude] defining Areas F and G did not coincide with the text of the NPRM and needed to be redefined consistent with the dimensions briefed at the informal airspace meetings. Two of these commenters further noted that the southern boundary of Area G was not parallel with the Runway 6R centerline extended as proof the coordinates were in error.
The FAA does not agree. The coordinates published in the NPRM regulatory text for defining Areas F and G were validated with the FAA's Aeronautical Navigation Procedures Group and found to be correct and consistent with the text published in the NPRM. The FAA acknowledges that Areas F and G proposed in the NPRM differ from what was presented during the informal airspace meetings. However, the proposed Areas F and G airspace published in the NPRM is the minimum necessary to reasonably contain IFR arrival aircraft flying PRM/SOIA procedures to runways 6L and 6R, and the geographic coordinates published accurately reflect these areas. With respect to the comments about the southern boundary of Area G, the commenters are correct that the boundary is not parallel to the runway 6R centerline extended. The northern and southern boundaries of the Area G are defined from different navigation aids. The northern boundary is defined by the Runway 6R localizer (I-CLE) signal extended, and the southern boundary is defined 6 miles south and parallel to the Runway 6R localizer (I-EYU) signal extended. This accounts for the fact that the southern boundary of Area G is offset by 3 degrees and is not parallel to the northern boundary.
One commenter requested the FAA consider opening a “Window” into the proposed Areas F and G to make that airspace available to glider pilots when CLE is landing on Runways 24L and 24R. The commenter based their request on what they noted as the FAA's practice of opening Windows into Class A airspace for glider operations under mountain wave conditions in Western States.
Air traffic control has the authority to authorize, on a case by case basis, certain operations within Class B airspace pursuant to the regulatory requirements of 14 CFR part 91.131, Operations in Class B Airspace. Establishing operational procedures is not a regulatory action. As such, this commenter's request for operational procedures is being provided to the Cleveland TRACON for further consideration as appropriate.
One commenter recommended that a steeper descent profile from the existing 3 degree glide slopes at CLE be used so as to enhance air carrier safety. The SSA was concerned that poor weather descents, with reduced aircraft performance in landing configurations, could result in air carrier crashes not being contained within airfield boundaries, risking the public and others.
The FAA does not agree. Aircraft accidents and crash sites are influenced by many factors, i.e. nature of the emergency, altitude, airspeed, weight, phase of flight, distance from an airport, terrain, etc. Establishing steeper instrument approach descent profiles does not necessarily equate to a safer approach into an airport or less risk to the public. Additionally, glide slope angles above 3.1 degrees would result in the loss of approach minimums for category D and E aircraft. A 3 degree glide slope angle is the standard for safety, and increasing the angle of the glide slope is outside the scope of this airspace rule.
Two commenters noted the dimensions of the airspace modifications [presumably Areas F and G] proposed in the NPRM were different from what the ad hoc committee discussed. One of the commenters went on to question whether the FAA had published the airspace extension descriptions in the NPRM with errors, while the other asserted that the passage of time since the ad hoc committee meeting in 2008 had diminished the public's awareness and participation in this proposed rulemaking. In addition, five commenters argued that the airspace modifications proposed in the NPRM did not reflect the correct dimensions the users agreed would be a workable revision. Two of these commenters further argued they did not think it was proper or legal for the FAA to force what they consider to be unacceptable, unsafe restrictions on pilots and air traffic by publishing incorrect information without re-engaging the public forum.
The FAA acknowledges that the dimensions of the Class B airspace proposed in the NPRM are different from the initial airspace configuration dimensions discussed by the ad hoc committee. However, the FAA does not agree that the NPRM was published with errors in the proposed airspace extension descriptions, or that the public's awareness and participation in the rulemaking process has been diminished. An ad hoc committee was formed to solicit local input on an initial proposal and met in 2008 to develop recommendations to the FAA regarding the proposed design of the Class B airspace. The committee did not reach consensus on an airspace design, but did recommend a variety of alternatives for the FAA to consider. In addition, as announced in the
The development of the CLE Class B airspace modification was a dynamic, iterative process of informing the public of the proposed airspace action, receiving comments and recommendations from the public, and considering the operational requirements in concert with public comments and recommendations received. The comments and recommendations received from the ad hoc committee were considered by the FAA in developing the proposed airspace action presented at the informal airspace meetings, and the public's comments and recommendations received following the informal airspace meetings were considered in the development of the proposed airspace action presented in the NPRM. As such, the proposed Class B airspace extension (Areas F and G) descriptions in the NPRM were not published with errors and the public's awareness and participation in this rulemaking action has not been diminished with the passage of time.
One commenter questioned the total operations figure of 550,171 for CLE in 2008 that was cited in the
The FAA source for the 550,171 total operations for CLE in 2008 cited in the background section of the NPRM comes from the Air Traffic Activity Data Systems (ATADS). The FAA's ATADS contains the official National Airspace System (NAS) air traffic operations data available for public release. The total operations figure cited in the NPRM is in fact the total terminal operations for CLE; which is the sum of the tower operations (240,340) and the TRACON operations (309,831) using the Cleveland Class B airspace area. The total operations figure the commenter cited from the Hopkins International Airport website is the total airport operations; which reflect the IFR and VFR arrivals, departures, and local operations at the airport only. It does not account for any overflight operations flying in the vicinity of CLE that contribute to the traffic density or operational complexity.
As noted in the NPRM, the procedural requirements for using PRM/SOIA to establish aircraft on final at least 15 miles from CLE result in aircraft exceeding the lateral boundaries of the current Class B airspace by up to 10 miles during moderate levels of air traffic. Based on the total terminal operations figures above and the existing IFR traffic flows in the vicinity of CLE, the FAA has determined the proposed Class B airspace area modifications are justified and necessary. The Class B airspace extensions will enhance flight safety by containing all instrument procedures and the aircraft flying the instrument approach procedures within Class B airspace and ensuring the segregation of IFR aircraft arriving/departing CLE and VFR general aviation and glider aircraft operating in the vicinity of the Cleveland Class B airspace area.
The FAA is amending 14 CFR part 71 to modify the Cleveland, OH, Class B airspace area. This action (depicted on the attached chart) administratively corrects one area within the existing Cleveland Class B airspace area and establishes two airspace extensions (the first, Area E, to the northeast, and the second, defined by Areas F and G, to the southwest) in order to provide additional airspace needed to contain IFR aircraft conducting instrument approach operations within Class B airspace once they have entered it and to better segregate the IFR aircraft arriving/departing CLE and the non-participating VFR aircraft operating in the vicinity of the Cleveland Class B airspace area. The modifications to the Cleveland Class B airspace area are discussed below.
Areas A, C, and D. Areas A, C, and D are unchanged by this action.
Area B. The FAA is correcting the legal description for Area B by removing the portion that excludes the airspace within a 2-mile radius of Burke Lakefront Airport. The Class B airspace within Area B does not overlap the airspace contained within a 2-mile radius of the Burke Lakefront Airport. Therefore, the Area B exclusion language addressing the airspace within a 2-mile radius of Burke Lakefront Airport is unnecessary.
Area E. Area E is established to the northeast of CLE. This modification extends from the existing Area D boundary defined by the 20-mile arc of I-HPI to the 30-mile arc of I-HPI. The northern boundary of this area is 6 miles north and parallel to the Runway 24R localizer (I-PVY) signal extended, and the southern boundary is 6 miles south and parallel to the Runway 24L localizer (I-FVZ) signal extended. This new area is established with the floor extending upward from 5,000 feet MSL to and including 8,000 feet MSL, overlying the Willoughby Lost Nation Airport in Willoughby, OH. The effect of this new area ensures IFR aircraft flying instrument approaches to runways 24L and 24R are contained within Class B airspace throughout the approach, segregates IFR aircraft arriving CLE and non-participating VFR aircraft operating in the vicinity of the Cleveland Class B airspace area, and provides airspace below and above this area for non-participating VFR aircraft operations outside of Class B airspace.
Area F. Area F is established to the southwest of CLE. This modification extends from the existing Area D boundary defined by the 20-mile arc of I-HPI to the 30-mile arc of I-HPI. The northern boundary is 6 miles north and parallel to the Runway 6L localizer (I-LIZ) signal extended, and the southern boundary is defined by the Runway 6R localizer (I-CLE) signal extended. This new area is established with the floor extending upward from 5,000 feet MSL to and including 8,000 feet MSL, overlying to the north and west of Wellington, OH. Similar to the effect of Area E, this new area [with Area G described below] ensures IFR aircraft flying instrument approaches to runways 6L and 6R are contained within Class B airspace throughout the approach, segregates IFR aircraft arriving CLE and non-participating VFR aircraft operating in the vicinity of the Cleveland Class B airspace area, and provides airspace below and above this area for VFR aircraft operations outside of Class B airspace.
Area G. Area G is established to the southwest of CLE also. This modification extends from the existing Area D boundary defined by the 20-mile arc of I-HPI to the 30-mile arc of I-HPI. The northern boundary is defined by the Runway 6R localizer (I-CLE) signal extended, and the southern boundary is defined 6 miles south and parallel to the Runway 6R localizer (I-EYU) signal extended. This new area is established with the floor extending upward from 6,000 feet MSL to and including 8,000 feet MSL, overlying the Reader-Botsford Airport in Wellington, OH. Similar to the effect of Areas E and F, this new area (with Area F described above) ensures
Additionally, this action updates the CLE airport reference point and the CLE Runway 24L ILS/DME antenna (I-HPI) geographic coordinates listed in the airspace designation of the Cleveland Class B airspace area to reflect current NAS aeronautical data.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. We have determined that there is no new information collection requirement associated with this final rule.
Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 directs that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, the Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this final rule.
Department of Transportation Order DOT 2100.5 prescribes policies and procedures for simplification, analysis, and review of regulations. If the expected cost impact is so minimal that a proposed or final rule does not warrant a full evaluation, this order permits that a statement to that effect and the basis for it be included in the preamble if a full regulatory evaluation of the cost and benefits is not prepared. Such a determination has been made for this final rule. The reasoning for this determination follows.
This final rule enhances safety by improving the flow of air traffic, and reducing the potential for midair collision in the Cleveland terminal area. In the NPRM, we concluded that the benefits of the proposed rule exceeded any minimal cost associated with the requirements. One commenter indicated that a soaring club would be forced to consider shutting down or relocating operations as a result of the proposal. The company may decide not to relocate which would result in no additional costs. If a company changes locations, there would be relocation costs. However, as explained earlier, the final rule will continue to allow glider operations resulting in only a minimal impact.
The FAA has determined establishing these requirements are essential to ensure flight safety and efficiency of the NAS in the CLE terminal airspace. Due to the efficiency and safety benefits, and because we have incorporated the recommendations of affected individuals into the requirements, there will only be minimal economic cost with substantial positive net benefits.
The FAA has, therefore, determined that this final rule is not a “significant regulatory action” as defined in section 3(f) of Executive Order 12866, and is not “significant” as defined in DOT's Regulatory Policies and Procedures.
The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.
Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA. However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.
Our initial determination was that the rule would not have a significant economic impact on a substantial number of small entities. One commenter indicated that a soaring club would be affected as a result of the proposal. We agree that, if a company changes locations, there would be some relocation cost. However, because we have incorporated the recommendations of affected individuals into the requirements, and we expect operations to continue, there will be minimal economic impact. As such, this final rule will not have a significant economic impact on a substantial number of small entities because the economic impact is expected to be minimal.
Therefore, the FAA Administrator certifies that this final rule will not have a significant economic impact on a substantial number of small entities.
The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $143.1 million in lieu of $100 million. This final rule does not contain such a mandate; therefore, the requirements of Title II of the Act do not apply.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p.389.
Area A. That airspace extending upward from the surface to and including 8,000 feet MSL within a 5-mile radius of I-HPI, excluding that airspace within a 1-mile radius of Gilbert Airport.
Area B. That airspace extending upward from 1,900 feet MSL to and including 8,000 feet MSL within an 8.5-mile radius of I-HPI, excluding Area A previously described.
Area C. That airspace extending upward from 3,000 feet MSL to and including 8,000 feet MSL within a 15-mile radius of I-HPI, excluding Areas A and B previously described.
Area D. That airspace extending upward from 4,000 feet MSL to and including 8,000 feet MSL within a 20-mile radius of I-HPI, excluding Areas A, B, and C previously described.
Area E. That airspace extending upward from 5,000 feet MSL to and including 8,000 feet MSL starting at point lat. 41°30′41″ N., long. 81°27′22″ W., then northeast to point lat. 41°37′00″ N., long. 81°16′29″ W., then northwest along the 30-mile arc of I-HPI to point lat. 41°47′20″ N., long. 81°27′36″ W., then southwest to point lat. 41°40′43″ N., long. 81°38′13″ W., then southeast along the 20-mile arc of I-HPI to the point of beginning.
Area F. That airspace extending upward from 5,000 feet MSL to and including 8,000 feet MSL starting at point lat. 41°16′17″ N., long. 82°16′56″ W., then southwest to point lat. 41°09′35″ N., long. 82°27′23″ W., then southeast along the 30-mile arc of I-HPI to point lat. 41°04′24″ N., long. 82°22′43″ W., then northeast to point lat. 41°10′52″ N., long. 82°12′37″ W., then northwest along the 20-mile arc of I-HPI to the point of beginning.
Area G. That airspace extending upward from 6,000 feet MSL to and including 8,000 feet MSL starting at point lat. 41°06′13″ N., long. 82°05′07″ W., then southwest to point lat. 40°59′08″ N., long. 82°15′03″ W., then northwest along the 30-mile arc of I-HPI to point lat. 41°04′24″ N., long. 82°22′43″ W., then northeast to point lat. 41°10′52″ N, long. 82°12′37″ W, then southeast along the 20-mile arc of I-HPI to the point of beginning.
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective February 14, 2011. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of February 14, 2011.
Availability of matter incorporated by reference in the amendment is as follows:
1. FAA Rules Docket, FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591;
2. The FAA Regional Office of the region in which the affected airport is located;
3. The National Flight Procedures Office, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or
4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
1. FAA Public Inquiry Center (APA-200), FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591; or
2. The FAA Regional Office of the region in which the affected airport is located.
Harry J. Hodges, Flight Procedure Standards Branch (AFS-420) Flight Technologies and Programs Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082 Oklahoma City, OK 73125) telephone: (405) 954-4164.
This rule amends Title 14, Code of Federal Regulations, part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (FDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference in the amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of Title 14 of the Code of Federal Regulations.
The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained in FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAP and the corresponding effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP as modified by FDC/P-NOTAMs.
The SIAPs, as modified by FDC P-NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for all these SIAP amendments requires making them effective in less than 30 days.
Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making these SIAPs effective in less than 30 days.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air Traffic Control, Airports, Incorporation by reference, and Navigation (Air).
Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, part 97, 14 CFR part 97, is amended by amending Standard Instrument Approach Procedures, effective at 0901 UTC on the dates specified, as follows:
49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.
By amending: § 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or TACAN; § 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; § 97.27 NDB, NDB/DME; § 97.29 ILS, ILS/DME, MLS, MLS/DME, MLS/RNAV; § 97.31 RADAR SIAPs; § 97.33 RNAV SIAPs; and § 97.35 COPTER SIAPs, Identified as follows:
Federal Aviation Administration (FAA), DOT.
Final rule.
This establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new
This rule is effective February 14, 2011. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of February 14, 2011.
Availability of matters incorporated by reference in the amendment is as follows:
1. FAA Rules Docket, FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591;
2. The FAA Regional Office of the region in which the affected airport is located;
3. The National Flight Procedures Office, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or
4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
1. FAA Public Inquiry Center (APA-200), FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591; or
2. The FAA Regional Office of the region in which the affected airport is located.
Harry J. Hodges, Flight Procedure Standards Branch (AFS-420), Flight Technologies and Programs Divisions, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125) Telephone: (405) 954-4164.
This rule amends Title 14 of the Code of Federal Regulations, part 97 (14 CFR part 97), by establishing, amending, suspending, or revoking SIAPS, Takeoff Minimums and/or ODPS. The complete regulators description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The applicable FAA Forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.
The large number of SIAPs, Takeoff Minimums and ODPs, in addition to their complex nature and the need for a special format make publication in the
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as contained in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPS and Takeoff Minimums and ODPS, an effective date at least 30 days after publication is provided.
Further, the SIAPs and Takeoff Minimums and ODPS contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPS and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedures before adopting these SIAPS, Takeoff Minimums and ODPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making some SIAPs effective in less than 30 days.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule ” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26,1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air Traffic Control, Airports, Incorporation by reference, and Navigation (Air).
Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or revoking Standard Instrument Approach Procedures and/or Takeoff Minimums and/or Obstacle Departure Procedures effective at 0902 UTC on the dates specified, as follows:
49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.
Federal Energy Regulatory Commission.
Final rule.
Pursuant to the authority delegated by 18 CFR 375.308(x)(1), the Director of the Office of Energy Projects (OEP) computes and publishes the project cost and annual limits for natural gas pipelines blanket construction certificates for each calendar year.
Richard Foley, Chief, Certificates Branch 1, Division of Pipeline Certificates, (202) 502-8955.
Section 157.208(d) of the Commission's Regulations provides for project cost limits applicable to construction, acquisition, operation and miscellaneous rearrangement of facilities (Table I) authorized under the blanket certificate procedure (Order No. 234, 19 FERC ¶ 61,216). Section 157.215(a) specifies the calendar year dollar limit which may be expended on underground storage testing and development (Table II) authorized under the blanket certificate. Section 157.208(d) requires that the “limits specified in Tables I and II shall be adjusted each calendar year to reflect the 'GDP implicit price deflator' published by the Department of Commerce for the previous calendar year.”
Pursuant to § 375.308(x)(1) of the Commission's Regulations, the authority for the publication of such cost limits, as adjusted for inflation, is delegated to the Director of the Office of Energy Projects. The cost limits for calendar year 2011, as published in Table I of § 157.208(d) and Table II of § 157.215(a), are hereby issued.
Administrative practice and procedure, Natural Gas, Reporting and recordkeeping requirements.
Accordingly, 18 CFR part 157 is amended as follows:
15 U.S.C. 717-717w, 3301-3432; 42 U.S.C. 7101-7352.
(d) * * *
(a) * * *
(5) * * *
Customs and Border Protection, Department of Homeland Security.
Final rule; correction.
Customs and Border Protection (CBP) published in the
The final rule is effective February 14, 2011.
Michele J. Snavely, Regulations and Rulings, Office of International Trade, (202) 325-0354.
In rule document 2010-32912 beginning on page 82241 in the issue of Thursday, December 30, 2010, make the following correction in the third column:
Remove in the heading of the document “CBP Dec. 10-33” and add in its place “CBP Dec. 10-34”.
Office of the Secretary, DoD.
Final rule.
This final rule adds a definition of Bariatric Surgery, amends the definition of Morbid Obesity, and revises the language relating to the treatment of morbid obesity to allow benefit consideration for newer bariatric surgical procedures that are considered appropriate medical care. The final rule removes language that specifically limits the types of surgical procedures to treat co-morbid conditions associated with morbid obesity and retains the TRICARE Program exclusion of non-surgical interventions related to morbid obesity, obesity and/or weight reduction. This final rule is necessary to allow coverage for other surgical procedures that reduce or resolve co-morbid conditions associated with morbid obesity and the use of the Body Mass Index (BMI), which is the more accurate measure for excess weight to estimate relative risk of disease. As new technologies or procedures evolve from investigational into generally accepted norms for medical practice, the statutes and regulations governing the TRICARE Program allow the Department to offer beneficiaries these new benefits. These changes are required in order to allow the Department to provide these newer technologies and procedures for the treatment of morbid obesity as they evolve.
TRICARE Management Activity, Medical Benefits and Reimbursement Branch, 16401 East Centretech Parkway, Aurora, CO 80011-9066.
Gail L. Jones, Medical Benefits and Reimbursement Branch, TRICARE Management Activity, telephone (303) 676-3401.
On December 27, 1982, the Department of Defense (DoD) published a final rule in the
The DoD used the definition of morbid obesity, which was based on the Metropolitan Life Table and used then by other major health care plans, as well as reflected the 1982 general opinion regarding which cases justify surgical intervention. The DoD decided, at the time, that it was necessary to be very specific in benefit parameters due to fiscal responsibility and to ensure that Program beneficiaries were not being exposed to less than fully developed medical technology or procedures.
At the time the current regulation was written in 1982, gastric bypass, gastric stapling, and gastroplasty methods were the recognized surgeries for morbid obesity. However, in recent years, other bariatric surgical procedures have evolved and some have a substantial body of literature to support their safety and efficacy. Unlike the original rule that listed the specific surgical procedures and the clinical conditions for which coverage may be extended; this final rule authorizes benefit consideration for those bariatric surgical procedures that have moved from the unproven status to the position of nationally accepted medical practice, as determined by the Program standard of reliable evidence.
Also in 1982 during development of the current regulation for morbid obesity, overweight and obesity were typically measured with height-weight tables (such as the Metropolitan Life Table). The 1982 regulation restricted eligibility for bariatric surgery to individuals who exceed their ideal weight for height by 100 pounds with an associated severe medical condition, or 200 percent or more over their ideal body weight with no associated medical condition required.
This final rule changes the Program definition of morbid obesity to reflect the current nationally accepted medical use of the BMI, rather than the typical assessed height-weight table (
This final rule does not expand the TRICARE benefit for morbid obesity surgery. However, it does make the specific procedures that are covered, as well as the clinical conditions for which coverage may be extended, a matter of policy. In other words, new bariatric surgery procedures may be added to the TRICARE benefit structure as such procedures are proven safe and effective and are established as nationally accepted medical practice as determined by the Program standard of reliable evidence.
On October 29, 2009 (74 FR 55792-55794), the Office of the Secretary of Defense published a proposed rule and provided the public the opportunity to comment on implementing changes to surgery for morbid obesity. The comment period closed on December 28, 2009. As result of publication of the proposed rule, DoD received 18 comments. Thirteen commenters expressed support and approval. We appreciate all expressions of support and approval for the proposed guidelines. We do not discuss the majority these comments which were favorable to the proposed rule and thus with which the Agency generally agrees. However, several people made comments with specific suggestions and questions and we have responded to each of these comments below.
This final rule considered all comments received during the comment period and has responded to those comments in this final rule. Since the proposed rule was published, DoD has revised paragraph (e)(15) of this section.
It has been determined that this rule is not a significant regulatory action. This rule does not:
(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy; a section of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another Agency;
(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.
It has been certified that this rule does not contain a Federal mandate that may result in the expenditure by State, local and tribal governments, in aggregate, or by the private sector, of $100 million or more in any one year.
It has been certified that this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. Set forth in the final rule are minor revisions to the existing regulation. The DoD does not anticipate a significant impact on the Program. The change from height-weight tables to the BMI should have a minimal impact on the number of beneficiaries eligible for surgery.
It has been certified that this rule does not impose reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995.
It has been certified that this rule does not have federalism implications, as set forth in Executive Order 13132. This rule does not have substantial direct effects on:
(1) The States;
(2) The relationship between the National Government and the States; or
(3) The distribution of power and responsibilities among the various levels of Government.
The final rule is consistent with the proposed rule.
Claims, Dental health, Health care, Health insurance, Individuals with disabilities, and Military personnel.
Accordingly, 32 CFR part 199 is amended as follows:
5 U.S.C. 301; 10 U.S.C. chapter 55.
(b) * * *
Body mass index is equal to weight in kilograms divided by height in meters squared.
(e) * * *
(15)
(i)
(A) Payment for bariatric surgical procedures is determined by the requirements specified in paragraph (g)(15) of this section, and as defined in § 199.2(b) of this part.
(B) Covered bariatric surgical procedures are payable only when the patient has completed growth (18 years of age or documentation of completion of bone growth) and has met one of the following selection criteria:
(
(
The Director, TMA, shall issue guidelines for review of the specific high-risk co-morbid conditions, exacerbated or caused by obesity based on the Reliable Evidence Standard as defined in § 199.2 of this part.
(ii)
(A) Payment may be extended for repeat bariatric surgery when medically necessary to correct or treat complications from the initial covered bariatric surgery (a takedown). For instance, the surgeon in many cases will
(B) Payment is authorized for otherwise covered medical services and supplies directly related to complications of obesity when such services and supplies are an integral and necessary part of the course of treatment that was aggravated by the obesity.
(iii)
(g) * * *
(28)
Environmental Protection Agency (EPA).
Direct final rule.
EPA is taking direct final action to approve a revision to the Virginia State Implementation Plan (SIP). The revision amends the definition of Volatile Organic Compound (VOC). EPA is approving these revisions to Virginia's definitions in accordance with the requirements of the Clean Air Act (CAA).
This rule is effective on April 15, 2011 without further notice, unless EPA receives adverse written comment by March 16, 2011. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the
Submit your comments, identified by Docket ID Number EPA-R03-OAR-2010-0902 by one of the following methods:
A.
B. E-mail:
C. Mail: EPA-R03-OAR-2010-0902, Harold A. Frankford, Air Protection Division, Mailcode 3AP00, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
D. Hand Delivery: At the previously-listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.
Harold A. Frankford, (215) 814-2108, or by e-mail at
Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA. On September 27, 2010, the Commonwealth of Virginia submitted a formal revision to its State Implementation Plan (SIP). The SIP revision consists of the revised definition of “Volatile organic compound” (VOC) listed in 9VAC5 Chapter 10 (General Definitions), Regulation 5-10-20 (Terms defined).
Virginia amended the definition of “Volatile organic compound” to add the organic compounds propylene carbonate and dimethyl carbonate to the list of excluded compounds. The exclusion of these compounds is consistent with the list of excluded compounds found in EPA's definition of “Volatile organic compounds (VOC)” at 40 CFR 51.100(s)(1).
In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the
On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege Law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts . . . .” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.” Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any Federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.”
Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the Federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law.
EPA is approving the amendment to the definition of “Volatile organic compound” in Virginia Regulation 9VAC5-10-20 (Terms defined) as a revision to the Virginia State Implementation Plan. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 15, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's
Environmental protection, Air pollution control, Incorporation by reference, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(c) * * *
Environmental Protection Agency (EPA).
Final rule.
EPA is taking final action to find that Arizona failed to make a state implementation plan (SIP) submittal required under the Clean Air Act (CAA or Act) for the Maricopa County (Phoenix) nonattainment area (Maricopa area) for particulate matter of 10 microns or less (PM-10). The Maricopa area is a serious PM-10 nonattainment area which, having failed to attain the PM-10 National Ambient Air Quality Standards (NAAQS) by its required statutory attainment deadline, is subject to section 189(d) of the CAA. For such areas, section 189(d) requires that states submit within 12 months after the applicable attainment date, plan revisions which provide for attainment of the PM-10 NAAQS, and from the date of such submission until attainment, for an annual reduction of PM-10 or PM-10 precursor emissions within the area of not less than 5 percent of the amount of such emissions as reported in the most recent inventory prepared for the area.
Arizona submitted a section 189(d) plan for the Maricopa area on December 21, 2007, and EPA proposed action on this plan on September 9, 2010. On January 25, 2011, prior to final action on the plan by EPA, Arizona withdrew the submitted plan from the Agency's consideration. As a result of the withdrawal, EPA is today finding that Arizona failed to make the submittal required for the Maricopa area under section 189(d) of the Act.
This action triggers the 18-month clock for mandatory application of sanctions and 2-year clock for a federal implementation plan (FIP) under the Act. This action is consistent with the CAA mechanism for assuring SIP submissions.
Gregory Nudd, U.S. Environmental Protection Agency, Region 9, Air Division (AIR-2), 75 Hawthorne Street, San Francisco, CA 94105-3901, Telephone: (415) 947-4107;
The NAAQS are standards for certain ambient air pollutants set by EPA to protect public health and welfare. PM-10 is among the ambient air pollutants for which EPA has established health-based standards. PM-10 causes adverse health effects by penetrating deep in the lungs, aggravating the cardiopulmonary system. Children, the elderly, and people with asthma and heart conditions are the most vulnerable.
On July 1, 1987 EPA revised the health-based NAAQS (52 FR 24672), replacing the standards for total suspended particulates with new standards applying only to particulate matter up to ten microns in diameter (PM-10). At that time, EPA established two PM-10 standards, annual standards and 24-hour standards. Effective December 18, 2006, EPA revoked the annual PM-10 standards but retained the 24-hour PM-10 standards. 71 FR 61144 (October 17, 2006). The 24-hour PM-10 standards of 150 micrograms per cubic meter (µg/m
On the date of enactment of the 1990 Clean Air Act Amendments (CAA or the Act), many areas, including the Maricopa area, meeting the qualifications of section 107(d)(4)(B) of the amended Act were designated nonattainment by operation of law. 56 FR 11101 (March 15, 1991). The Maricopa area is located in the eastern portion of Maricopa County and encompasses the cities of Phoenix, Mesa, Scottsdale, Tempe, Chandler, Glendale, as well as 17 other jurisdictions and unincorporated County lands. The nonattainment area also includes the town of Apache Junction in Pinal County. EPA codified the boundaries of the Maricopa area at 40 CFR 81.303.
Once an area is designated nonattainment for PM-10, section 188 of the CAA outlines the process for classifying the area as moderate or serious and establishes the area's attainment deadline. In accordance with section 188(a), at the time of designation, all PM-10 nonattainment areas, including the Maricopa area, were initially classified as moderate.
A moderate PM-10 nonattainment area must be reclassified to serious PM-10 nonattainment by operation of law if EPA determines after the applicable attainment date that, based on air quality, the area failed to attain by that date. CAA sections 179(c) and 188(b)(2). On May 10, 1996, EPA reclassified the Maricopa area as a serious PM-10 nonattainment area. 61 FR 21372.
As a serious PM-10 nonattainment area, the Maricopa area acquired a new attainment deadline of no later than December 31, 2001. CAA section 188(c)(2). However CAA section 188(e) allows states to apply for up to a 5-year extension of that deadline if certain conditions are met. Arizona requested an attainment date extension under CAA section 188(e) from December 31, 2001 to December 31, 2006. On July 25, 2002, EPA approved the serious area PM-10 plan for the Maricopa area and granted Arizona's request to extend the attainment date for the area to December 31, 2006. 67 FR 48718. This final action, as well as the two proposals preceding it, provide a more detailed discussion of the history of PM-10 planning in the Maricopa area. See 65 FR 19964 (April 13, 2000) and 66 FR 50252 (October 2, 2001).
On June 6, 2007, EPA found that the Maricopa area failed to attain the 24-hour PM-10 NAAQS by December 31, 2006 (72 FR 31183) and required the submittal of a new plan meeting the requirements of section 189(d) by December 31, 2007.
On December 19, 2007, the Maricopa Association of Governments (MAG) adopted the “MAG 2007 Five Percent Plan for PM-10 for the Maricopa County Nonattainment Area” (189(d) plan). On December 21, 2007 the Arizona Department of Environmental Quality (ADEQ) submitted the 189(d) plan. MAG adopted and ADEQ submitted this SIP revision in order to address the CAA requirements in section 189(d).
CAA section 110(k)(1) requires EPA to determine whether a SIP submission is complete within 60 days of receipt. This section also provides that any plan that has not been affirmatively determined to be complete or incomplete shall become complete within 6 months by operation of law. EPA's completeness criteria are found in 40 CFR part 51, appendix V. The 189(d) plan submittal became complete by operation of law on June 21, 2008.
EPA proposed to partially approve and partially disapprove the 189(d) plan on September 9, 2010 (75 FR 54806). On January 25, 2011, prior to any final EPA action, Arizona withdrew the 189(d) plan from the Agency's consideration.
If Arizona does not submit the required plan revisions within 18 months of the effective date of today's rulemaking, pursuant to CAA section 179(a) and 40 CFR 52.31, the offset sanction identified in CAA section 179(b) will be applied in the affected area. If the State has still not made a complete submittal 6 months after the offset sanction is imposed, then the highway funding sanction will apply in the affected area, in accordance with 40 CFR 52.31.
This final action is effective on February 14, 2011.
Under the Administrative Procedures Act (APA), 5 U.S.C. 553(d)(3), an agency rulemaking may take effect before 30 days after the date of publication in the
This final agency action is not subject to the notice-and-comment requirements of the APA, 5 U.S.C. 533(b). EPA believes that because of the limited time provided to make findings of failure to submit regarding SIP submissions, Congress did not intend such findings to be subject to notice-and-comment rulemaking. However, to the extent such findings are subject to notice-and-comment rulemaking, EPA invokes the good cause exception pursuant to the APA, 5 U.S.C. 553(d)(3). Notice and comment are unnecessary because no EPA judgment is involved in making a nonsubstantive finding of failure to submit SIPs required by the
The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.”
This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.
This final rule will not have a significant impact on a substantial number of small entities because findings of failure to submit required SIP revisions do not by themselves create any new requirements. Therefore, I certify that this action will not have a significant economic impact on a substantial number of small entities.
Under section 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated costs to State, local, or tribal governments in the aggregate; or to the private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.
EPA has determined that today's action does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. The CAA provision discussed in this rule requires states to submit SIPs. This rule merely finds that Arizona has not met that requirement. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.
This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This final rule does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes. Thus, Executive Order 13175 does not apply to this rule.
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This rule is not subject to Executive Order 13045 because it merely finds that Arizona has failed to make a submission that is required under the Clean Air Act.
This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.
Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.
The EPA believes that VCS are inapplicable to this action. Today's action does not require the public to
Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.
EPA lacks the discretionary authority to address environmental justice in this rulemaking.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 15, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).
42 U.S.C. 7401
Defense Acquisition Regulations System, Department of Defense (DoD).
Final rule.
DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to address award-fee contracts, including eliminating the use of provisional award-fee payments.
Mr. Mark Gomersall, Defense Acquisition Regulations System, OUSD (AT&L) DPAP/DARS, 3060 Defense Pentagon, Room 3B855, Washington, DC 20301-3060. Telephone 703-602-0302; facsimile 703-602-0350. Please cite DFARS Case 2006-D021.
DoD published a proposed rule in the
In response to the proposed rule, DoD received comments from three respondents. A discussion of the comments is provided below:
a.
b.
c.
d.
a.
b.
a.
b.
a.
b.
c.
d.
e.
In addition to changes made in response to the public comments, the phrase “held for” has been replaced by the phrase “available for” in DFARS 216.405-2(1) to better reflect DoD policy.
This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
DoD certifies that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
The rule prohibits roll-over of unearned award fee, and requires that at least 40 percent of the award-fee pool be available for the final performance evaluation with the intent of incentivizing the contractor throughout performance of the contract. Any impact of these requirements on small businesses that do have award-fee contracts is mitigated by the fact that contractors will continue to be paid costs on cost-type contracts, and progress or performance-based payments on fixed-price contracts. Therefore, contractors' cash flow will not be impacted significantly unless there is a failure to meet the performance criteria in the contract.
Additionally, no comments were received in response to publication of the proposed rule with respect to the impact of the proposed rule on small entities.
The final rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501,
Government procurement.
Therefore, 48 CFR parts 216 and 252 are amended as follows:
41 U.S.C. 421 and 48 CFR chapter 1.
(e) Award-fee plans required in FAR 16.401(e) shall be incorporated into all award-fee type contracts. Follow the procedures at PGI 216.401(e) when planning to award an award-fee contract.
(1) Contracting officers shall use objective criteria to the maximum extent possible to measure contract performance. Objective criteria are associated with cost-plus-incentive-fee and fixed-price-incentive contracts.
(2) When objective criteria exist but the contracting officer determines that it is in the best interest of the Government also to incentivize subjective elements of performance, the most appropriate contract type is a multiple-incentive contract containing both objective incentives and subjective award-fee criteria (i.e., cost-plus-incentive-fee/award-fee or fixed-price-incentive/award-fee).
(3) See PGI 216.401(e) for guidance on the use of award-fee contracts.
(1)
(2)
(3)
(i) The cost-plus-award-fee contract shall not be used—
(A) To avoid—
(
(
(B) For either engineering development or operational system development acquisitions that have specifications suitable for simultaneous research and development and production, except a cost-plus-award-fee contract may be used for individual engineering development or operational system development acquisitions ancillary to the development of a major weapon system or equipment, where—
(
(
(ii) Do not apply the weighted guidelines method to cost-plus-award-fee contracts for either the base (fixed) fee or the award fee.
(iii) The base fee shall not exceed three percent of the estimated cost of the contract exclusive of the fee.
(4) See PGI 216.405-2 for guidance on the use of cost-plus-award-fee contracts.
(e)(1) Use the clause at 252.216-7004, Award Fee Reduction or Denial for Jeopardizing the Health or Safety of Government Personnel, in all solicitations and contracts containing award-fee provisions.
(2) Use the clause at 252.216-7005, Award Fee, in solicitations and contracts when an award-fee contract is contemplated.
As prescribed in 216.406(e)(2), insert the following clause:
The Contractor may earn award fee from a minimum of zero dollars to the maximum amount stated in the award-fee plan in this contract. In no event will award fee be paid to the Contractor for any evaluation period in which the Government rates the Contractor's overall cost, schedule, and technical performance below satisfactory. The Contracting Officer may unilaterally revise the award-fee plan prior to the beginning of any rating period in order to redirect contractor emphasis.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
This final rule implements 2011 specifications and management measures for the Atlantic mackerel, squid, and butterfish (MSB) fisheries. Specifically, this action sets quotas for the MSB fisheries, modifies the measure that transfers
Effective February 14, 2011.
Copies of supporting documents used by the Mid-Atlantic Fishery Management Council (Council), including the Environmental Assessment (EA) and Regulatory Impact Review (RIR)/Initial Regulatory Flexibility Analysis (IRFA), are available from: Dr. Christopher M. Moore, Executive Director, Mid-Atlantic Fishery Management Council, Suite 201, 800 N. State Street, Dover, DE 19901. The EA/RIR/IRFA is accessible via the Internet at
Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this rule may be submitted to NMFS, Northeast Regional Office, and by e-mail to
Aja Peters-Mason, Fishery Policy Analyst, 978-281-9195, fax 978-281-9135.
Regulations implementing the MSB Fishery Management Plan (FMP) appear at 50 CFR part 648, subpart B. Regulations governing foreign fishing appear at 50 CFR part 600, subpart F. The regulations at §§ 648.21 and 600.516(c) require that NMFS, based on the maximum optimum yield (Max OY) of each fishery, as established by the regulations, annually publish a rule specifying the amounts of the initial optimum yield (IOY), allowable biological catch (ABC), domestic annual harvest (DAH), and domestic annual processing (DAP), as well as, where applicable, the amounts for total allowable level of foreign fishing (TALFF) and joint venture processing (JVP) for the affected species managed under the FMP. In addition, these regulations allow specifications to be specified for up to 3 years, subject to annual review. The regulations at § 648.21 also specify that IOY for
At its June 8-10, 2010, meeting in New York, NY, the Council recommended MSB specifications for the 2011 fishing year. The Council considered the recommendations made by its Monitoring Committee and Scientific and Statistical Committee (SSC). The SSC recommends ABC. SSC advice accounts for scientific uncertainty regarding stock status and biological reference points in recommending the ABC, and the Council relies on that ABC recommendation to set other specifications. In addition to 2011 specifications for each of the MSB species, the Council recommended a modification to the provision that transfers Trimester I quota underages to Trimesters II and III for the
This action implements the following MSB specifications and management measures for the 2011 fishing year, which are described in detail below.
This action specifies the mackerel ABC at 47,395 mt, based on the formula ABC = T−C. T, or total annual catch, is the yield associated with a fishing mortality rate that is equal to the target fishing mortality rate (F). The Transboundary Resources Advisory Committee (TRAC) could not establish biomass reference points or target F at its March 2010 mackerel stock status assessment, and recommended that total annual catches not exceed the average total landings (80,000 mt) over the last 3 years (2006-2008) until new information is available. C is the estimated catch of mackerel in Canadian waters (32,605 mt) for the upcoming fishing year. Thus 80,000 mt minus 32,605 mt results in the 2011 mackerel ABC of 47,395 mt. The 2010 TRAC assessment estimated that U.S. mackerel discards from 2004-2008 (the most recent years for which complete data are available) accounted for 1.3 percent of total catch. Thus NMFS is specifying the mackerel IOY and DAH at 46,779 m (ABC minus 616 mt for discards). The DAH includes commercial harvest plus the 15,000 mt available for the recreational fishery.
While a surplus existed between ABC and DAH for many years, that surplus has disappeared due to downward adjustments of the specifications in recent years. Analysis of the state of the world mackerel market and possible increases in U.S. production levels concluded that specifying an IOY resulting in zero TALFF will yield positive social and economic benefits to both U.S. harvesters and processors, and to the Nation. For these reasons NMFS is specifying IOY at level that can be fully harvested by the domestic fleet (46,779 mt), thereby precluding the specification of a TALFF, in order to support the U.S. mackerel industry.
This action maintains JVP at zero. In the past, the Council recommended a JVP greater than zero because it believed U.S. processors lacked the ability to process the total amount of mackerel that U.S. harvesters could land. However, for the past 7 years, the Council has recommended zero JVP because U.S. shoreside processing capacity for mackerel has expanded. The Council concluded that processing capacity was no longer a limiting factor relative to domestic production of mackerel, even at the higher DAP of 100,000 mt; this is even more true with the specified DAP of 31,779 mt. The differential between the DAH and the DAP reflects a projection that the recreational mackerel fishery will land 15,000 mt.
This action specifies a
As was done in fishing years 2007 through 2010, this action allocates the 2011
For the 2010 fishing year, Trimester I
The action changes the 72-hr pre-trip observer notification requirement established through Amendment 10 for vessels issued a
This action specifies the
This action specifies the butterfish ABC at 1,500 mt, and the IOY at 500 mt, and DAH and DAP at 495 mt. Additionally, consistent with MSB regulations, the Council recommended, and this action is specifying, zero TALFF for butterfish because zero TALFF is specified for mackerel.
Amendment 10 created a butterfish mortality cap for the
NMFS received seven comments from industry entities: Three from the Garden State Seafood Association (GSSA), submitted on behalf of several fishery organizations; one from Lund's Fisheries, Incorporated; one submitted on behalf of Seafreeze, Ltd.; one from Top Catch, Inc.; and one from TrawlWorks, Inc. In addition, there was one form letter submitted with signatures from 73 individuals. Some commenters identified issues that are not related to this action; only comments related to the proposed specifications are responded to below.
All of the commenters expressed concern that the butterfish mortality cap will be attained, and that participants in the
GSSA, Lunds, Top Catch, Inc., and the form letter specifically requested NMFS to specify the butterfish ABC at 4,445 mt, a level the commenters claimed is justified based on the best available science. GSSA, Lunds, and Top Catch stated their view that this level was identified by the SSC as a safe, scientifically justified harvest level. The form letter also stated that it is unjustified to use a precautionary approach when specifying butterfish ABC in light of the uncertainty in the recent assessment. The commenters expressed the view that guesswork was used to quantify butterfish predation mortality. GSSA and Lunds stated their view that the range of ABCs considered valid by the SSC included a 25,000-mt option that was risk-neutral; therefore, they concluded that the ABC of 1,500 mt seems excessively precautionary. GSSA and Lund's pointed out that the butterfish ABC was set at 4,545 mt in 2007, and that the reduction of ABC to 1,500 mt in 2008 was made at a time when no new assessment data were available, in an effort to discourage a directed butterfish fishery. GSSA stated the view that SAW 49 determined that butterfish were not overfished, nor were they overfished in the past; therefore, the 1,500-mt ABC is based on erroneous information. They argued that setting the ABC at 4,445 mt is more scientifically sound, and appropriately risk averse.
Seafreeze stated that the 2011 butterfish specifications violate National Standard 1 because the butterfish quota prevents a directed butterfish fishery from occurring, and the butterfish mortality cap would result in the premature closure of the
GSSA noted that the 2004 SARC only had abundance estimates based on survey data from the R/V
GSSA further asserted that the lack of reference points for the butterfish stock, the fact that butterfish predation mortality far surpasses fisheries mortality, and the fact that the Autumn 2010 bottom trawl survey results have yet to be compiled, all indicate that there is no information to inform abundance projections for butterfish for 2011, making any management action arbitrary and unsupported by science.
GSSA also stated that recent downward trends in the butterfish stock may be due to increased predation. They believe that, because predation mortality is high and because
While butterfish fishing mortality is low, and overfishing appears not to be occurring, the butterfish mortality cap was designed by the Council in Amendment 10 to minimize butterfish bycatch in the
Though there was considerable uncertainty in the recent assessment, including limited information about the causes of the butterfish stock decline, NMFS determined that there was no evidence presented that suggests that the status of the butterfish stock has improved since the 2004 SAW 38 assessment concluded that the stock was overfished. SAW 49 reviewers agreed that the status of the butterfish stock could not be determined based on the assessment. Several commenters argued that, in their view, the cap is overly precautionary, and that the uncertainty in the stock assessment results means it is inappropriate to be precautionary. NMFS disagrees that this is necessarily the case, and notes that this alone is insufficient basis for an increase to the butterfish ABC (and the resulting butterfish mortality cap).
NMFS notes that the SSC utilized the results of SAW 49 in making the recommendation for the ABC specified in this action. The alternate suggested values for ABC were not validated or endorsed by the SSC, as some commenters indicated. Because of uncertainty about butterfish stock size, and uncertainty about the potential response of the butterfish stock to fishing pressure, the Council staff generated a range of potential ABCs for consideration by the SSC. These ranged from 1,362 mt to 25,000 mt, and were developed using several different approaches. The 4,445-mt ABC (average catch from 1996-2008) and the 25,000-mt ABC (an F of 0.39 applied to a 45,000-mt stock) cited by the commenters were included in this range. While the SSC used this information from Council staff, in conjunction with SAW 49, to inform its final ABC recommendation, the range generated by Council staff was in no way binding for the SSC, nor was it endorsed by the SSC as appropriate or scientifically justified. There is no basis for the commenters' contention that these higher values are risk-averse or risk-neutral; there is no SSC conclusion to that effect. The SSC ultimately recommended 1,500 mt as the 2011 butterfish ABC because available information suggested that, provided improved environmental conditions affecting recruitment, the butterfish stock size could increase in the future if the 2011 ABC was maintained at this level. The SSC used the best scientific information available to it at the time it made its recommendation.
The commenters are correct that the butterfish ABC was set at 4,545 mt until 2007, but did not fully describe the reason for the reduction of the ABC to 1,500 mt for subsequent years. Though no new stock assessment data were available leading up to implementation of the 2008 specifications (the action that first set the butterfish ABC at 1,500 mt, and IOY/DAH at 500 mt), the ABC and IOY were reduced to cap the fishery at recent levels (500 mt) to prevent any expansion of the directed fishery of butterfish while the stock is being rebuilt. At that time, the Council was developing measures for Amendment 10 to reduce butterfish discards and rebuild the stock.
NMFS disagrees that the butterfish specifications violate either National Standard 1 or National Standard 2. National Standard 1 does not require NMFS to specify a quota that will support a directed fishery if it is inappropriate to the stock condition. In fact, since 2008, the Council has recommended, and NMFS has specified, the butterfish quota at 500 mt to maintain butterfish landings at low levels due to concerns about the stock. In addition, courts have recognized that optimum yield is a level to be achieved on a continuing basis and not in a single year (
The results of the Autumn 2009, Spring 2010, and Autumn 2010 NEFSC surveys were not included in the data used for the SAW 49 stock assessment. NMFS notes that survey indices do not provide a point estimate of stock size or amount to a status determination. The calibration-adjusted butterfish catch rates from the Autumn 2009 and Autumn 2010 bottom trawl surveys were 6.4 kg/tow and 5.59 kg/tow, respectively. Though these numbers are about twice the average from Autumn surveys from 1999-2008 (3.4 kg/tow), it is not possible to determine if this upturn constitutes a trend. NMFS notes that the butterfish stock assessment is not based solely on survey biomass indices, but incorporates data sets within a stock assessment model.
NMFS acknowledges that, if the cap is attained before the
Both organizations supported the Agency's determination that both JVP and TALFF be set at zero because there is sufficient demand for mackerel in world markets to create opportunities for U.S. harvesters and shoreside processors to utilize all of the U.S. ABC.
The U.S. quota is derived from ABC by estimating Canadian catch in 2011 at 32,605 mt. NMFS acknowledges the commenters' concern that the Canadian Government has set the mackerel quota at 60,000 mt, but does not believe it is necessary to adjust the Canadian catch estimate in response. While the Canadian quota provides the opportunity for the Canadian fishery to increase landings substantially, NMFS believes that the Council's derivation method, which is based on recent fishery performance, provides the most reliable estimate of 2011 Canadian catch. Despite the progress made in the recent joint assessment of the mackerel stock, there is no joint process for the allocation of the mackerel resource, and the United States and Canada set their catch levels for mackerel independently. NMFS notes that, despite the fact that the mackerel quota allocation for 2011 (46,779 mt) is lower than the 2010 allocation of 115,000 mt, it is still almost double the average U.S. mackerel landings of 25,000 mt during the past 3 years (2007-2009). NMFS notes that mackerel apparently continues to be unavailable to the U.S. fleet, as preliminary 2010 landings of mackerel are approximately 10,000 mt. As a result, the 2011 mackerel quota appears unlikely to constrain the fishery.
The Administrator, Northeast Region, NMFS, determined that these specifications are necessary for the conservation and management of the Atlantic mackerel, squid, and butterfish fisheries and that it is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws.
The Assistant Administrator for Fisheries finds good cause under 5 U.S.C. 553(d)(3), to waive the 30-day delay in effectiveness otherwise required by the Administrative Procedure Act. If there is a delay in implementing this action, NMFS will lack the regulatory authority to issue a closure for the
The Council prepared an EA for the 2011 specifications, and the NOAA Assistant Administrator for Fisheries concluded that there will be no significant impact on the human environment as a result of this rule. A copy of the EA is available upon request (
This action is authorized by 50 CFR part 648 and has been determined to be not significant for purposes of Executive Order 12866 (E.O. 12866).
NMFS, pursuant to section 604 of the Regulatory Flexibility Act, has prepared a FRFA, included in the preamble of this final rule, in support of the 2011 MSB specifications and management measures. The FRFA describes the economic impact that this final rule, along with other non-preferred alternatives, will have on small entities.
The FRFA incorporates the economic impacts and analysis summarized in the IRFA, a summary of the significant issues raised by the public in response to the IRFA, and NMFS responses to those comments. A copy of the IRFA, the RIR, and the EA are available upon request (
This action proposes 2011 specifications and management measures for MSB fisheries and modifies existing management measures to improve the management of MSB fisheries. A complete description of the reasons why this action is being considered, and the objectives of and legal basis for this action, is contained in the preamble to the proposed and final rules and is not repeated here.
Eight unique comment letters were received during the comment period on the proposed specifications. The comments were not specifically directed to the IRFA, but each of the comments expressed concern about negative economic impacts of the proposed ABCs for butterfish and mackerel, on small entities. All public comments on issues relative to the IRFA, in which commenters expressed concern directly and indirectly about the economic impacts of the 2011 specifications, are
Based on permit data for 2010, the numbers of potential fishing vessels in the 2011 fisheries are as follows: 360
This action contains a change to an information collection previously approved by the Office of Management and Budget (OMB) under OMB Control Number 0648-0601: Atlantic Mackerel, Squid, and Butterfish Amendment 10 Data Collection. This action requires that vessels intending to embark on
The mackerel IOY specified in this action (46,779 mt, with 15,000 mt allocated to recreational catch) represents a reduction from status quo (115,000 mt). Despite the reduction, the specified IOY is above recent U.S. landings; mackerel landings for 2007-2009 averaged 23,310 mt; and preliminary landings in 2010 are approximately 10,000 mt. Thus, the reduction does not pose a constraint to vessels relative to the landings in recent years. Accordingly, no reductions in revenues for the mackerel fishery are expected as a result of this action.
The
The accounting methods for
The change to the pre-trip observer notification requirement implemented in this action, which would allow vessels to notify at least 72 hr, but no more than 10 days prior to fishing trips, is an administrative measure to facilitate the placement of observers aboard the
The
The butterfish IOY specified in this action (500 mt) represents status quo, as compared to 2010, and represents only a minimal constraint to vessels relative to the landings in recent years. Due to market conditions, there has not been a directed butterfish fishery in recent years; therefore, recent landings have been low. Given the lack of a directed butterfish fishery and low butterfish landings, this action is not expected to reduce revenues in this fishery more than minimally.
As discussed in the FRFA for MSB Amendment 10, the butterfish mortality cap has a potential for economic impact on fishery participants. The
The Council analysis evaluated two alternatives to this action for mackerel. Based on recent harvest levels, neither of the ABC and IOY alternatives would represent a constraint on vessels in this fishery. The first alternative (status quo; least restrictive), which would have set the ABC at 156,000 mt and IOY at 115,000 mt, was not selected because the ABC would have exceeded the SSC's recommendation.
As in the selected action (intermediately restrictive), the second alternative (most restrictive) started from the SSC recommended stockwide ABC of 80,000 mt, but instead subtracted an estimated 41,556 mt for
There were two alternatives to the selected action evaluated for
The alternatives also differed in how Trimester I underages and overages would be applied to the
Two non-selected alternatives were considered for
One non-selected alternative was considered for butterfish that would maintain the status quo, which only differs from the selected alternative in that it would have set Max OY at 12,175 mt. The selected alternative removes the specification of Max OY, because it is no longer supported by best available science. All other specifications are identical to the status quo alternative.
Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a letter to permit holders that also serves as small entity compliance guide was prepared. The guide will be sent to all holders of permits issued for the MSB fisheries. In addition, copies of this final rule and guide (i.e., permit holder letter) are available from the Regional Administrator and are also available from NMFS, Northeast Region (
This action contains a collection-of-information requirement subject to the Paperwork Reduction Act (PRA), which was previously approved by OMB under OMB Control Number 0648-0601. The public reporting burden for the phone call to declare a
Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.
Fisheries, Fishing, Recordkeeping and reporting requirements.
For the reasons set out in the preamble, 50 CFR part 648 is amended as follows:
16 U.S.C. 1801
(f) * * *
(2) Any underages of commercial period quota for Trimester I that are greater than 25 percent of the Trimester I quota will be reallocated to Trimesters II and III of the same year. The reallocation of quota from Trimester I to Trimester II is limited, such that the Trimester II quota may only be increased by 50 percent; the remaining portion of the underage will be reallocated to Trimester III. Any underages of commercial period quota for Trimester I that are less than 25 percent of the Trimester I quota will be applied to Trimester III of the same year. Any overages of commercial quota for Trimesters I and II will be subtracted from Trimester III of the same year.
(a) * * *
(2) * * *
(i) If the Regional Administrator determines that the Trimester I closure threshold has been underharvested by
(a) A vessel issued a
(d) If a vessel issued a
Nuclear Regulatory Commission.
Request for comment; correction.
This document corrects a notice appearing in the
Lisa Dimmick, Health Physicist, Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone: 301-415-0694, e-mail:
On January 7, 2011, at 76 FR 1100, NRC published a document announcing the availability of draft implementation guidance for public comment. In that publication, the accession number was incorrect.
In the January 7, 2011, issue of the
For the Nuclear Regulatory Commission.
Federal Aviation Administration (FAA), DOT.
Notice of proposed special conditions.
This action proposes special conditions for the Gulfstream GVI airplane. The Gulfstream GVI airplane will have numerous electrically operated systems whose function is needed for continued safe flight and landing of the airplane. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for these design features. These proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
We must receive your comments by March 31, 2011.
You must mail two copies of your comments to: Federal Aviation Administration, Transport Airplane Directorate, Attn: Rules Docket (ANM-113), Docket No. NM444, 1601 Lind Avenue, SW., Renton, Washington 98057-3356. You may deliver two copies to the Transport Airplane Directorate at the above address. You must mark your comments: Docket No. NM444. You can inspect comments in the Rules Docket weekdays, except Federal holidays, between 7:30 a.m. and 4 p.m.
Nazih Khaouly, FAA, Airplane and Flight Crew Interface Branch, ANM-111, Transport Standards Staff, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 227-2432; facsimile (425) 227-1320.
We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.
We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning these special conditions. You can inspect the docket before and after the comment closing date. If you wish to review the docket in person, go to the address in the
We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive.
If you want us to acknowledge receipt of your comments on this proposal, include with your comments a self-addressed, stamped postcard on which you have written the docket number. We will stamp the date on the postcard and mail it back to you.
On March 29, 2005, Gulfstream Aerospace Corporation (hereafter referred to as “Gulfstream”) applied for an FAA type certificate for its new Gulfstream Model GVI passenger airplane. Gulfstream later applied for, and was granted, an extension of time for the type certificate, which changed the effective application date to September 28, 2006. The Gulfstream Model GVI airplane will be an all-new, two-engine jet transport airplane with an executive cabin interior. The maximum takeoff weight will be 99,600 pounds, with a maximum passenger count of 19 passengers.
Under provisions of Title 14 Code of Federal Regulations (14 CFR) 21.17, Gulfstream must show that the Gulfstream Model GVI airplane (hereafter referred to as “the GVI”) meets the applicable provisions of 14 CFR part 25, as amended by Amendments 25-1 through 25-119, 25-122, and 25-124. If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the GVI because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.
In addition to complying with the applicable airworthiness regulations and special conditions, the GVI must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36. The FAA must also issue a finding of regulatory adequacy pursuant to section 611 of Public Law 92-574, the “Noise Control Act of 1972.”
The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.17(a)(2).
Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design features, the special conditions would also apply to the other model under provisions of § 21.101.
The GVI incorporates an electronic flight control system that requires a continuous source of electrical power in order to keep the system operable. Due to rapid improvements in airplane technology, the applicable airworthiness regulations do not contain adequate or appropriate safety standards for these design features. These proposed special conditions for the GVI contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
The GVI incorporates an electronic flight control system that requires a continuous source of electrical power in order to keep the system operable. The criticality of this system is such that their failure will either reduce the capability of the airplane or the ability of the crew to cope with adverse operating conditions, or prevent continued safe flight and landing of the airplane. The airworthiness standards of part 25 do not contain adequate or appropriate standards for protection of these systems from the adverse effects of operation without normal electrical power.
The current rule, § 25.1351(d), Amendment 25-72, requires safe operation under visual flight rules (VFR) conditions for at least five minutes after loss of all normal electrical power. This rule was structured around traditional airplane designs that used mechanical control cables and linkages for flight control. These manual controls allowed the crew to maintain aerodynamic control of the airplane for an indefinite period of time after loss of all electrical power. Under these conditions, the mechanical flight control system provided the crew with the ability to fly the airplane while attempting to identify the cause of the electrical failure, start the engine(s) if necessary, and reestablish some of the electrical power generation capability, if possible.
To maintain the same level of safety associated with traditional designs, the GVI must be designed for operation with the normal sources of engine and auxiliary power unit (APU) generated electrical power inoperative. Service experience has shown that loss of all electrical power from the airplane's engine and APU driven generators is not extremely improbable. Thus, Gulfstream must demonstrate that the airplane is capable of recovering adequate primary electrical power generation for safe flight and landing.
For compliance purposes, a test demonstration of the loss of normal engine generator must be established such that:
1. The failure condition should be assumed to occur during night instrument meteorological conditions (IMC) at the most critical phase of the flight relative to the electrical power system design and distribution of equipment loads on the system.
2. After the unrestorable loss of normal engine generator power, the airplane engine restart capability must be provided and operations continued in IMC.
3. The airplane should be demonstrated to be capable of continuous safe flight and landing. The length of time must be computed based on the maximum diversion time capability for which the airplane is being certified. Consideration for speed reductions resulting from the associated failure must be made.
4. Availability of APU operation should not be considered in establishing emergency power system adequacy.
As discussed above, these proposed special conditions are applicable to the GVI. Should Gulfstream apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design features, these proposed special conditions would apply to that model as well.
This action affects only certain novel or unusual design features of the GVI. It is not a rule of general applicability.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
Accordingly, the Federal Aviation Administration (FAA) proposes the following special conditions as part of the type certification basis for the GVI airplanes.
Since the total loss of normal generated electrical power in two engine aircraft has not achieved the extremely improbable level, and since the loss of all electrical power may be catastrophic to aircraft utilizing an electronic flight control system, the following special conditions are proposed in lieu of 14 CFR 25.1351(d):
It must be demonstrated by test or a combination of test and analysis that the airplane can continue safe flight and landing with inoperative normal engine and APU generator electrical power (electrical power sources excluding the battery and any other standby electrical sources). The airplane operation should be considered at the critical phase of flight and include the ability to restart the engines and maintain flight for the maximum diversion time capability being certified.
Federal Aviation Administration (FAA), DOT.
Notice of proposed special conditions.
This action proposes special conditions for the Gulfstream GVI airplane. This airplane will have novel or unusual design features when compared to the state of technology envisioned in the airworthiness standards for transport category airplanes. These design features include systems that affect the structural capability of the airplane. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for these design features. The proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
We must receive your comments by March 31, 2011.
You must mail two copies of your comments to: Federal Aviation Administration, Transport Airplane Directorate, Attn: Rules Docket (ANM-113), Docket No. NM442, 1601 Lind Avenue, SW., Renton, Washington 98057-3356. You may deliver two copies to the Transport Airplane Directorate at the above address. You must mark your comments: Docket No. NM442. You can inspect comments in the Rules Docket weekdays, except Federal holidays, between 7:30 a.m. and 4 p.m.
Carl Niedermeyer, FAA, Airframe/Cabin Safety Branch, ANM-115, Transport Standards Staff, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 227-2279; facsimile (425) 227-1320.
We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.
We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning these special conditions. You can inspect the docket before and after the comment closing date. If you wish to review the docket in person, go to the address in the
We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive.
If you want us to acknowledge receipt of your comments on this proposal, include with your comments a self-addressed, stamped postcard on which you have written the docket number. We will stamp the date on the postcard and mail it back to you.
On March 29, 2005, Gulfstream Aerospace Corporation (hereafter referred to as “Gulfstream”) applied for an FAA type certificate for its new Gulfstream Model GVI passenger airplane. Gulfstream later applied for, and was granted, an extension of time for the type certificate, which changed the effective application date to September 28, 2006. The Gulfstream Model GVI airplane will be an all-new, two-engine jet transport airplane with an executive cabin interior. The maximum takeoff weight will be 99,600 pounds, with a maximum passenger count of 19 passengers.
Under provisions of Title 14, Code of Federal Regulations (14 CFR) 21.17, Gulfstream must show that the Gulfstream Model GVI airplane (hereafter referred to as “the GVI”) meets the applicable provisions of 14 CFR part 25, as amended by Amendments 25-1 through 25-119, 25-122, and 25-124. If the Administrator finds that the applicable airworthiness regulations (
In addition to complying with the applicable airworthiness regulations and special conditions, the GVI must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36. The FAA must also issue a finding of regulatory adequacy pursuant to section 611 of Public Law 92-574, the “Noise Control Act of 1972.”
The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.17(a)(2).
Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design features, the special conditions would also apply to the other model under provisions of § 21.101.
The Model GVI airplane will incorporate novel or unusual design features. These features are systems that may affect the airplane's structural performance, either directly or as a result of failure or malfunction. That is, the airplane's systems affect how it responds in maneuver and gust conditions, and thereby affect its structural capability. These systems may also affect the aeroelastic stability of the airplane. These systems include the GVI's flight control systems, autopilots, stability augmentation systems, load alleviation systems, and fuel management systems. Such systems represent a novel and unusual feature when compared to the technology envisioned in the current airworthiness standards.
Special conditions are needed to require consideration of the effects of systems on the structural capability and aeroelastic stability of the airplane, both in the normal and in the failed state, because these effects are not covered by current regulations.
These proposed special conditions are identical or nearly identical to those previously required for type certification of other transport airplane models. These proposed special conditions were derived initially from standardized requirements developed by the Aviation Rulemaking Advisory Committee (ARAC), comprised of representatives of the FAA, Europe's Joint Aviation Authorities (now replaced by the European Aviation Safety Agency), and industry.
These proposed special conditions require that the airplane meets the structural requirements of subparts C and D of 14 CFR part 25 when the airplane systems are fully operative. These proposed special conditions also require that the airplane meet these requirements considering failure conditions. In some cases, reduced margins are allowed for failure conditions based on system reliability.
These special conditions establish a level of safety that neither raises nor lowers the standard set forth in the applicable regulations.
In these proposed special conditions and in the current standards and regulations, the term “any” is used. Use of this term has traditionally been understood to require all items covered by the term are addressed, rather than addressing only a portion of the items. The use of the term “any” in these proposed special conditions continues this traditional understanding.
As discussed above, these proposed special conditions are applicable to the GVI. Should Gulfstream apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design features, these proposed special conditions would apply to that model as well.
This action affects only certain novel or unusual design features of the GVI. It is not a rule of general applicability.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for this special condition is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
Accordingly, the Federal Aviation Administration (FAA) proposes the following special conditions as part of the type certification basis for the GVI airplanes.
The GVI is equipped with systems that affect structural performance, either directly or as a result of a failure or malfunction. The influence of these systems and their failure conditions on structural performance must be taken into account when showing compliance with the requirements of Subparts C and D of part 25 of Title 14, Code of Federal Regulations.
1. The following criteria must be used for showing compliance with this proposed special condition for airplanes equipped with flight control systems, autopilots, stability augmentation systems, load alleviation systems, fuel management systems, and other systems that either directly or as a result of failure or malfunction affect structural performance.
2. The criteria defined herein only address the direct structural consequences of the system responses and performance. They cannot be considered in isolation but should be included in the overall safety evaluation of the airplane. These criteria may in some instances duplicate standards already established for this evaluation. These criteria are only applicable to structure whose failure could prevent continued safe flight and landing. Specific criteria that define acceptable limits on handling characteristics or stability requirements when operating in the system degraded or inoperative mode are not provided in this proposed special condition.
3. Depending upon the specific characteristics of the airplane, additional studies may be required that go beyond the criteria provided in this proposed special condition in order to demonstrate the capability of the airplane to meet other realistic conditions such as alternative gust or maneuver descriptions for an airplane equipped with a load alleviation system.
4. The following definitions are applicable to this proposed special condition.
(a) Structural performance: Capability of the airplane to meet the structural requirements of 14 CFR part 25.
(b) Flight limitations: Limitations that can be applied to the airplane flight conditions following an in-flight occurrence and that are included in the flight manual (
(c) Operational limitations: Limitations, including flight limitations, that can be applied to the airplane operating conditions before dispatch (
(d) Probabilistic terms: The probabilistic terms (probable, improbable, extremely improbable) used in this proposed special condition are the same as those used in § 25.1309.
(e) Failure condition: The term failure condition is the same as that used in § 25.1309; however, this proposed special condition applies only to system failure conditions that affect the structural performance of the airplane (
1.
2.
(a) Limit loads must be derived in all normal operating configurations of the system from all the limit conditions specified in Subpart C (or used in lieu of those specified in Subpart C), taking into account any special behavior of such a system or associated functions or any effect on the structural performance of the airplane that may occur up to the limit loads. In particular, any significant nonlinearity (rate of displacement of control surface, thresholds or any other system nonlinearities) must be accounted for in a realistic or conservative way when deriving limit loads from limit conditions.
(b) The airplane must meet the strength requirements of part 25 (static strength, residual strength), using the specified factors to derive ultimate loads from the limit loads defined above. The effect of nonlinearities must be investigated beyond limit conditions to ensure the behavior of the system presents no anomaly compared to the behavior below limit conditions. However, conditions beyond limit conditions need not be considered when it can be shown that the airplane has design features that will not allow it to exceed those limit conditions.
(c) The airplane must meet the aeroelastic stability requirements of § 25.629.
3.
(a) At the time of occurrence. Starting from 1-g level flight conditions, a realistic scenario, including pilot corrective actions, must be established to determine the loads occurring at the time of failure and immediately after the failure.
(1) For static strength substantiation, these loads multiplied by an appropriate factor of safety that is related to the probability of occurrence of the failure are ultimate loads to be considered for design. The factor of safety (FS) is defined in Figure 1.
(2) For residual strength substantiation, the airplane must be able to withstand two thirds of the ultimate loads defined in subparagraph B.3(a)(1). For pressurized cabins, these loads must be combined with the normal operating differential pressure.
(3) Freedom from aeroelastic instability must be shown up to the speeds defined in § 25.629(b)(2). For failure conditions that result in speeds beyond V
(4) Failures of the system that result in forced structural vibrations (oscillatory failures) must not produce loads that could result in detrimental deformation of primary structure.
(b) For the continuation of the flight. For the airplane in the system failed state, and considering any appropriate reconfiguration and flight limitations, the following apply:
(1) The loads derived from the following conditions (or used in lieu of the following conditions) at speeds up to V
(i) The limit symmetrical maneuvering conditions specified in § 25.331 and in § 25.345.
(ii) The limit gust and turbulence conditions specified in § 25.341 and in § 25.345.
(iii) The limit rolling conditions specified in § 25.349 and the limit unsymmetrical conditions specified in § 25.367 and § 25.427(b) and (c).
(iv) The limit yaw maneuvering conditions specified in § 25.351.
(v) The limit ground loading conditions specified in § 25.473 and § 25.491.
(2) For static strength substantiation, each part of the structure must be able to withstand the loads in paragraph B.3(b)(1) of this proposed special condition multiplied by a factor of safety depending on the probability of being in this failure state. The factor of safety is defined in Figure 2.
If Pj is greater than 10
(3) For residual strength substantiation, the airplane must be able to withstand two thirds of the ultimate loads defined in paragraph B.3(b)(2) of this proposed special condition. For pressurized cabins, these loads must be combined with the normal operating differential pressure.
(4) If the loads induced by the failure condition have a significant effect on fatigue or damage tolerance then their effects must be taken into account.
(5) Freedom from aeroelastic instability must be shown up to a speed determined from Figure 3. Flutter clearance speeds V′ and V″ may be
If Pj is greater than 10
(6) Freedom from aeroelastic instability must also be shown up to V′ in Figure 3 above, for any probable system failure condition combined with any damage required or selected for investigation by § 25.571(b).
(c) Consideration of certain failure conditions may be required by other sections of 14 CFR part 25 regardless of calculated system reliability. Where analysis shows the probability of these failure conditions to be less than 10
4.
(a) The system must be checked for failure conditions, not extremely improbable, that degrade the structural capability below the level required by part 25 or significantly reduce the reliability of the remaining system. As far as reasonably practicable, the flight crew must be made aware of these failures before flight. Certain elements of the control system, such as mechanical and hydraulic components, may use special periodic inspections, and electronic components may use daily checks, in lieu of detection and indication systems to achieve the objective of this requirement. These certification maintenance requirements must be limited to components that are not readily detectable by normal detection and indication systems, and where service history shows that inspections will provide an adequate level of safety.
(b) The existence of any failure condition, not extremely improbable, during flight that could significantly affect the structural capability of the airplane and for which the associated reduction in airworthiness can be minimized by suitable flight limitations, must be signaled to the flight crew. For example, failure conditions that result in a factor of safety between the airplane strength and the loads of Subpart C below 1.25, or flutter margins below V″, must be signaled to the crew during flight.
5.
Federal Aviation Administration (FAA), DOT.
Notice of proposed special conditions.
This action proposes special conditions for the Gulfstream GVI airplane. This airplane will have novel or unusual design features when compared to the state of technology envisioned in the airworthiness standards for transport category airplanes. These design features include an electronic flight control system that provides roll control of the airplane through pilot inputs to the flight
We must receive your comments by March 31, 2011.
You must mail two copies of your comments to: Federal Aviation Administration, Transport Airplane Directorate, Attn: Rules Docket (ANM-113), Docket No. NM441, 1601 Lind Avenue, SW., Renton, Washington 98057-3356. You may deliver two copies to the Transport Airplane Directorate at the above address. You must mark your comments: Docket No. NM441. You can inspect comments in the Rules Docket weekdays, except Federal holidays, between 7:30 a.m. and 4 p.m.
Carl Niedermeyer, FAA, Airframe/Cabin Safety Branch, ANM-115, Transport Standards Staff, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 227-2279; facsimile (425) 227-1320.
We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.
We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning these special conditions. You can inspect the docket before and after the comment closing date. If you wish to review the docket in person, go to the address in the
We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive.
If you want us to acknowledge receipt of your comments on this proposal, include with your comments a self-addressed, stamped postcard on which you have written the docket number. We will stamp the date on the postcard and mail it back to you.
On March 29, 2005, Gulfstream Aerospace Corporation (hereafter referred to as “Gulfstream”) applied for an FAA type certificate for its new Gulfstream Model GVI passenger airplane. Gulfstream later applied for, and was granted, an extension of time for the type certificate, which changed the effective application date to September 28, 2006. The Gulfstream Model GVI airplane will be an all-new, two-engine jet transport airplane with an executive cabin interior. The maximum takeoff weight will be 99,600 pounds, with a maximum passenger count of 19 passengers.
Under provisions of Title 14, Code of Federal Regulations (14 CFR) 21.17, Gulfstream must show that the Gulfstream Model GVI airplane (hereafter referred to as “the GVI”) meets the applicable provisions of 14 CFR part 25, as amended by Amendments 25-1 through 25-119, 25-122, and 25-124. If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the GVI because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.
In addition to complying with the applicable airworthiness regulations and special conditions, the GVI must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36. The FAA must also issue a finding of regulatory adequacy pursuant to section 611 of Public Law 92-574, the “Noise Control Act of 1972.”
The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.17(a)(2).
Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design features, the special conditions would also apply to the other model under provisions of § 21.101.
The GVI is equipped with an electronic flight control system that provides roll control of the airplane through pilot inputs to the flight computers. The current design roll maneuver requirement for structural loads in 14 CFR part 25 is inadequate for addressing an airplane with electronic flight controls that affect maneuvering. Special conditions are proposed to take into account the effects of an electronic flight control system.
The GVI is equipped with an electronic flight control system that provides roll control of the airplane through pilot inputs to the flight computers. Current part 25 airworthiness regulations account for “control laws” for which aileron deflection is proportional to control wheel deflection. They do not address any nonlinearities
These proposed special conditions differ from current requirements in that the special conditions require that the roll maneuver result from defined movements of the cockpit roll control as opposed to defined aileron deflections. Also, these proposed special conditions require an additional load condition at design maneuvering speed (V
As discussed above, these proposed special conditions are applicable to the GVI. Should Gulfstream apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design features, these proposed special conditions would apply to that model as well.
This action affects only certain novel or unusual design features of the GVI. It is not a rule of general applicability.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
Accordingly, the Federal Aviation Administration (FAA) proposes the following special conditions as part of the type certification basis for the GVI airplanes.
In lieu of compliance with § 25.349(a), Gulfstream must comply with the following special conditions.
The following conditions, speeds, and cockpit roll control motions (except as the motions may be limited by pilot effort) must be considered in combination with an airplane load factor of zero and of two-thirds of the positive maneuvering factor used in design. In determining the resulting control surface deflections, the torsional flexibility of the wing must be considered in accordance with § 25.301(b):
1. Conditions corresponding to steady rolling velocities must be investigated. In addition, conditions corresponding to maximum angular acceleration must be investigated for airplanes with engines or other weight concentrations outboard of the fuselage. For the angular acceleration conditions, zero rolling velocity may be assumed in the absence of a rational time history investigation of the maneuver.
2. At V
3. At V
4. At V
Federal Aviation Administration (FAA), DOT.
Notice of proposed special conditions.
This action proposes special conditions for the Pratt and Whitney Canada (PWC) model PW210S turboshaft engine. This engine model will have a novel or unusual design feature associated with engine operation in auxiliary power unit (APU) mode. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These proposed special conditions contain the added safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
We must receive your comments by March 16, 2011.
You must mail two copies of your comments to: Federal Aviation Administration, Engine and Propeller Directorate,
For technical questions concerning this proposed rule contact Marc Bouthillier, ANE-111, Engine and Propeller Directorate, Aircraft Certification Service, 12 New England Executive Park, Burlington, Massachusetts 01803-5299, telephone (781) 238-7120; facsimile (781) 238-7199; e-mail
We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.
We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel about these special conditions. You can inspect the docket before and after the comment closing date. If you wish to review the docket in person, go to the address in the
We will consider all comments we receive by the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive.
If you want us to let you know we received your comments on this proposal, send us a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you.
On December 5, 2005, PWC applied for a type certificate for the model PW210S turboshaft engine. The engine is a free turbine turboshaft designed for a transport category helicopter. This engine incorporates a two stage compressor driven by a single stage turbine and a two stage free power turbine driving a two stage reduction gearbox and main output shaft. The control system includes a dual channel digital electronic control. The engine will incorporate a novel or unusual design feature associated with engine operation in auxiliary power unit (APU) mode. The helicopter will incorporate a main rotor brake what will allow the engine main output shaft and power turbine to be brought to a stop and to remain stationary, while the gas generator portion of the engine continues to operate as an APU while on the ground.
The applicable airworthiness standards do not contain adequate or appropriate airworthiness standards to address this design feature.
These special conditions contain the additional airworthiness standards necessary to establish a level of safety equivalent to the level that would result
Under the provisions of 14 CFR 21.17, PWC must show that the model PW210S turboshaft engine meets the provisions of the applicable regulations in effect on the date of application. The application date is December 5, 2005, which corresponds to 14 CFR part 33 Amendment 20. However, PWC has elected to demonstrate compliance to later amendments of part 33 for this model. Therefore, the certification basis for the PW210S model turboshaft engine will be part 33, effective February 1, 1965, as amended by Amendments 33-1 through 33-24.
If the Administrator finds that the applicable airworthiness regulations in part 33, as amended, do not contain adequate or appropriate safety standards for the PWC model PW210S turboshaft engine, because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.
The FAA issues special conditions, as defined by 14 CFR 11.19, in accordance with 14 CFR 11.38, which become part of the type certification basis in accordance with § 21.17(b)(2).
Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include another related model that incorporates the same or similar novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same or similar novel or unusual design feature, the special conditions would also apply to the other model.
The Pratt and Whitney Canada (PWC) model PW210S turboshaft engine will incorporate a novel or unusual design feature associated with engine operation in auxiliary power unit (APU) mode. Special conditions for APU mode are proposed to address the novel and unusual design feature. The special conditions are discussed below.
The proposed special conditions are similar to those requirements that currently exist in 14 CFR part 33, § 33.96 Engine Tests in Auxiliary Power Unit (APU) Mode. However the current rule only applies to turboprop type engines, therefore special conditions are needed to apply appropriate requirements to turboshaft type engines. Also, the type certification considerations for function and reliability are common between these two engine types in this regard, making requirements similar to current § 33.96 generally applicable to turboshaft engine types. Future rulemaking may occur to expand the applicability of § 33.96 to include turboshaft type engines.
As discussed above, these special conditions are applicable to PWC model PW210S turboshaft engines. If Pratt and Whitney Canada applies later for a change to the type certificate to include another related model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.
This action affects only certain novel or unusual design features on one model of engine. It is not a rule of general applicability, and it affects only the applicant who applied to the FAA for approval of these features on the engine.
Air transportation, Aircraft, Aviation safety, Safety.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701-44702, 44704.
Accordingly, the Federal Aviation Administration (FAA) proposes the following special conditions as part of the type certification basis for Pratt and Whitney Canada (PWC) model PW210S turboshaft engines.
1. PART 1 DEFINITION. Unless otherwise approved by the Administrator and documented in the appropriate manuals and certification documents, the following definition applies to this special condition: “Auxiliary Power Unit Mode” Engine operation with the main output shaft and power turbine locked and stationary, while the gas generator portion of the engine continues to operate, for the purpose of supplying the rotorcraft with electric/hydraulic/pneumatic power (as applicable) while on the ground.
2. PART 33 REQUIREMENTS:
(a) Ground locking: A total of 45 hours with the engine output shaft locked to simulate rotor brake engagement, in a manner which clearly demonstrates the complete engine's ability to function without adverse affect while operating in the APU mode under the maximum conditions of engine rotor speed, torque, temperature, air bleed and power extraction as specified by the applicant.
(b) Dynamic braking: A total of 400 application-release cycles of simulated brake engagements must be made in a manner which clearly demonstrates the complete engine's ability to function without adverse affect under the maximum conditions of engine acceleration and deceleration rate, rotor speed, torque and temperature as specified by the applicant. The engine output shaft must be stopped prior to brake-release.
(c) One hundred engine starts and stops with the output shaft locked in a manner simulating rotor brake engagement.
(d) The tests required by paragraphs (a), (b) and (c) of this section must be performed on the same engine, but this engine need not be the same engine used for the tests required by § 33.87 of 14 CFR part 33.
(e) The tests required by paragraphs (a), (b) and (c) of this section must be followed by engine disassembly to the extent necessary to show that each engine part conforms to the type design and is eligible for incorporation into an engine for continued operation in accordance with information submitted in compliance with § 33.4, Instructions for Continued Airworthiness.
(f) Brake engagement and release: The effects on the engine of braking and releasing the output shaft, including partial or sudden events while the engine is running, must be determined.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend Class E airspace at Livermore, CA, to accommodate aircraft using new Instrument Landing System (ILS)
Comments must be received on or before March 31, 2011.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590; telephone (202) 366-9826. You must identify FAA Docket No. FAA-2010-1264; Airspace Docket No. 10-AWP-23, at the beginning of your comments. You may also submit comments through the Internet at
Eldon Taylor, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue, SW., Renton, WA 98057; telephone (425) 203-4537.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers (FAA Docket No. FAA-2010-1264 and Airspace Docket No. 10-AWP-23) and be submitted in triplicate to the Docket Management System (
Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2010-1264 and Airspace Docket No. 10-AWP-23”. The postcard will be date/time stamped and returned to the commenter.
All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the Internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (
Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking, (202) 267-9677, for a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 by modifying Class E airspace extending upward from 700 feet above the surface at Livermore Municipal Airport, Livermore, CA. This action also would add the airport name and geographic coordinates to the Class E airspace designation. Controlled airspace is necessary to accommodate aircraft using the new ILS LOC standard instrument approach procedures at Livermore Municipal Airport. Also, this action would correct a typographic error in the regulatory text of the Class D airspace area by correcting the word `iport' to `Airport'. This action would enhance the safety and management of aircraft operations at the Airport.
Class D and Class E airspace designations are published in paragraph 5000 and 6005, respectively, of FAA Order 7400.9U, dated August 18, 2010, and effective September 15, 2010, which is incorporated by reference in 14 CFR 71.1. The Class D and Class E airspace designation listed in this document will be published subsequently in this Order.
The FAA has determined this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this proposed regulation; (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified this proposed rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, section 106, describes the authority for the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart I, section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes additional controlled airspace at Livermore Municipal Airport, Livermore, CA.
Airspace, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
1. The authority citation for 14 CFR part 71 continues to read as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
2. The incorporation by reference in 14 CFR 71.1 of the Federal Aviation Administration Order 7400.9U, Airspace Designations and Reporting Points, dated August 18, 2010, and effective September 15, 2010 is amended as follows:
That airspace extending upward from the surface to and including 2,900 feet MSL within a 4-mile radius of Livermore Municipal Airport. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory.
That airspace extending upward from 700 feet above the surface within 8.1 miles north and 4 miles south of the Livermore Municipal Airport 091° bearing extending 23 miles east of Livermore Municipal Airport, and within 3.5 miles north and 4 miles south of the Livermore Municipal Airport 271° bearing extending 2.6 miles west of the airport.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend Class E airspace at McCall Municipal Airport, McCall, ID. Decommissioning of the McCall Non-Directional Beacon (NDB) at McCall Municipal Airport has made this action necessary for the safety and management of Instrument Flight Rules (IFR) operations at the airport. This action also would correct the airport name from McCall Airport.
Comments must be received on or before March 31, 2011.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590; telephone (202) 366-9826. You must identify FAA Docket No. FAA-2011-0097; Airspace Docket No. 11-ANM-3, at the beginning of your comments. You may also submit comments through the Internet at
Eldon Taylor, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue, SW., Renton, WA 98057; telephone (425) 203-4537.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers (FAA Docket No. FAA-2011-0097 and Airspace Docket No. 11-ANM-3) and be submitted in triplicate to the Docket Management System (
Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2011-0097 and Airspace Docket No. 11-ANM-3”. The postcard will be date/time stamped and returned to the commenter.
All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the Internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (
Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking, (202) 267-9677, for a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) Part 71 by amending Class E airspace extending upward from 700 feet above the surface for standard instrument approach procedures at McCall Municipal Airport, McCall, ID. Airspace reconfiguration is necessary due to the decommissioning of the McCall NDB and cancellation of the NDB approach. Controlled airspace is necessary for the safety and management of IFR operations at the Airport. This also would correct the airport name from McCall Airport to McCall Municipal Airport.
Class E airspace designations are published in paragraph 6005, of FAA Order 7400.9U, dated August 18, 2010, and effective September 15, 2010, which is incorporated by reference in 14 CFR Part 71.1. The Class E airspace designation listed in this document will
The FAA has determined this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this proposed regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified this proposed rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes the authority for the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends controlled airspace at McCall Municipal Airport, McCall, ID.
Airspace, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR Part 71 as follows:
1. The authority citation for 14 CFR Part 71 continues to read as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
2. The incorporation by reference in 14 CFR 71.1 of the Federal Aviation Administration Order 7400.9U, Airspace Designations and Reporting Points, dated August 18, 2010, and effective September 15, 2010 is amended as follows:
That airspace extending upward from 700 feet above the surface within 5 miles west and 7 miles east of the 169° and 349° bearings from the McCall Municipal Airport extending from 21 miles south to 6 miles north of the McCall Municipal Airport; that airspace extending upward from 1,200 feet above the surface within a line from lat. 44°12′00″ N., long. 116°06′00″ W.; to lat. 45°05′00″ N., long. 117°28′00″ W.; to lat. 45°15′00″ N., long. 117°19′00″ W.; to lat. 45°05′30″ N., long. 115°52′00″ W.; to lat. 44°16′00″ N., long. 115°40′00″ W.; thence to the point of beginning, excluding Federal airways; La Grande and Baker City, OR, and Boise, ID, Class E airspace areas.
Postal Regulatory Commission.
Notice of proposed rulemaking; availability of rulemaking petition.
The Commission is establishing a docket to consider certain temporary waivers from periodic reporting of service performance measurement. Establishing this docket will allow the Commission to consider the Postal Service's proposal and comments from the public.
Submit comments electronically by accessing the “Filing Online” link in the banner at the top of the Commission's Web site (
Stephen L. Sharfman, General Counsel, at 202-789-6820 (case-related information) or
On February 3, 2011, the Postal Service filed a request for temporary waivers from periodic reporting of service performance measurement for various market dominant postal services, or components of postal services, pursuant to Commission Order No. 465.
Order No. 465 established a process for the Postal Service to achieve full compliance with all periodic service performance reporting requirements by the filing date of the FY 2011 Annual Compliance Report. Order No. 465 at 18-24. As part of the process, the Commission directed the Postal Service to seek temporary waivers where it cannot immediately comply with specific reporting requirements. As a condition of granting any waiver, the Commission directed the Postal Service to develop and present implementation plans addressing each reporting requirement for which the Postal Service cannot provide the required information. The “plans at a minimum should provide an explanation of why a reporting requirement cannot be complied with, the steps necessary to come into compliance, and a timeline of events necessary to achieve compliance. Interim milestones shall be included in the plans where applicable such that both the Postal Service and the Commission can evaluate progress being made.”
In the instant docket, the Postal Service requests certain temporary waivers from periodic reporting (quarterly) of service performance measurements for Standard Mail, Bound Printed Matter Flats, and certain area and district level data for Presort First-Class Mail, and End-to-End Periodicals. Request at 1. The Request includes proposals for interim service performance measurement reporting.
Two related dockets are pending before the Commission. Docket No. RM2011-1 concerns a Postal Service request which seeks temporary waivers for First-Class Mail Flats at the district level, non-retail First-Class Mail Parcels,
The Commission establishes Docket No. RM2011-7 for consideration of matters related to the proposed temporary waivers from periodic reporting of service performance measurement identified in the Postal Service's Request.
Interested persons may submit comments on whether the Postal Service's Request is consistent with the policies of 39 U.S.C. 3652(a)(2) and with the directions given in Order No. 465. Interested persons also may comment on interim measurement proposals. Comments are due no later than February 15, 2011. The Postal Service's Request can be accessed via the Commission's Web site (
The Commission appoints Emmett Rand Costich to serve as Public Representative in the captioned proceeding.
1. The Commission establishes Docket No. RM2011-7 for consideration of matters raised by the Postal Service's Request.
2. Comments by interested persons in this proceeding are due no later than February 15, 2011.
3. Pursuant to 39 U.S.C. 505, Emmett Rand Costich is appointed to serve as the officer of the Commission (Public Representative) to represent the interests of the general public in this proceeding.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing partial approval of the Colorado interstate transport State Implementation Plan (SIP) revisions, submitted on March 31, 2010, addressing the requirements of Clean Air Act (CAA) section 110(a)(2)(D)(i)(II) for the 1997 ozone National Ambient Air Quality Standards (NAAQS), and the requirements of CAA section 110(a)(2)(D)(i)(I) and (II) for the 1997 PM
Comments must be received on or before March 16, 2011.
Submit your comments, identified by Docket ID No. EPA-R08-OAR-2007-1036, by one of the following methods:
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•
•
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Laurel Dygowski, Air Program, U.S. Environmental Protection Agency, Region 8, Mailcode 8P-AR, 1595 Wynkoop, Denver, Colorado 80202-1129, (303) 312-6144,
For the purpose of this document, we are giving meaning to certain words or initials as follows:
(i) The words or initials
(ii) The words
(iii) The initials
(iv) The words
1.
2.
a. Identify the rulemaking by docket number and other identifying information (subject heading,
b. Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
c. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
d. Describe any assumptions and provide any technical information and/or data that you used.
e. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
f. Provide specific examples to illustrate your concerns, and suggest alternatives.
g. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
h. Make sure to submit your comments by the comment period deadline identified.
On July 18, 1997, EPA promulgated new NAAQS for 8-hour ozone and for fine particulate matter (PM
Section 110(a)(1) of the CAA requires States to submit SIPs to address a new or revised NAAQS within 3 years after promulgation of such standards, or within such shorter period as EPA may prescribe. Section 110(a)(2) lists the elements that such new SIPs must address, as applicable, including section 110(a)(2)(D)(i), which pertains to interstate transport of certain emissions.
Section 110(a)(2)(D)(i) of the CAA requires that a State's SIP must contain adequate provisions prohibiting any source or other type of emissions activity within the State from emitting any air pollutant in amounts which will: (1) Contribute significantly to nonattainment of the NAAQS in any other State; (2) interfere with maintenance of the NAAQS by any other State; (3) interfere with any other State's required measures to prevent significant deterioration of air quality; or (4) interfere with any other State's required measures to protect visibility.
On June 11, 2008, the State of Colorado submitted to EPA an Interstate Transport SIP addressing all four elements of the interstate transport requirements of CAA section 110(a)(2)(D)(i) for the 1997 ozone and PM
EPA is proposing approval of the sections of the Colorado Interstate Transport SIP submitted March 31, 2010 that address the section 110(a)(2)(D)(i)(II) “interference with visibility protection” requirement for the 1997 ozone and PM
Section 110(k) of the CAA addresses EPA's rulemaking action on SIP submissions by States. The CAA requires States to observe certain procedural requirements in developing SIP revisions for submittal to EPA. Section 110(a)(2) of the CAA requires that each SIP revision be adopted after reasonable notice and public hearing. This must occur prior to the revision being submitted by a State to EPA.
The Colorado AQCC held a public hearing in December 2009 for the interstate transport SIP revision: “State
EPA has reviewed the submittal from the State of Colorado and has determined that the State met the requirements for reasonable notice and public hearing under section 110(a)(2) of the CAA.
The interstate transport provisions at CAA section 110(a)(2)(D)(i), also referred to as the “good neighbor” provisions, require that each SIP contain adequate provisions prohibiting emissions that adversely affect any other State's air quality through interstate transport of air pollutants. As discussed in the Background Information section of this notice, a SIP must contain provisions that satisfy the four elements of section 110(a)(2)(D)(i). This action only addresses element (4), or the “interference with visibility protection” requirement, for the 1997 ozone and PM
The 2006 Guidance further explains that since EPA had not determined at that point in time that emissions from any States interfered with any other States' measures addressing RAVI, States could satisfy this portion of the “interference with visibility protection” requirement by certifying that none of their sources emitted pollutants interfering with other States' implementation plan measures to protect visibility under the 1980 regulations.
With respect to the 1999 Regional Haze provisions (
The State of Colorado has elected to satisfy the element (4) requirement of the good neighbor provisions by providing a demonstration in its March 13, 2010 Interstate Transport SIP submittal that it does not interfere with other State's measures to protect visibility through their RH SIP. The State provides an analysis in its SIP that begins with an inventory of current control measures (some approved only at the State level, some that are Federally enforceable, and some that are Federal programs) that reduce visibility impairing pollutants. Some examples of measures the State has relied on in making its demonstration that are Federally enforceable or are Federal programs include: (1) Regulation Number 1—Emission Controls for Particulates, Smoke, Carbon Monoxide and Sulfur Oxides; (2) parts of Regulation Number 3—Stationary Source Permitting and Air pollutant Emission Notice Requirements; and (3) Federal mobile source tailpipe exhaust programs. The State also included some reductions attributable to its RH SIP, which have not been approved by EPA.
The State used emission inventory information and modeling provided by the Western Regional Air Partnership (WRAP) to quantify the visibility impacts from Colorado sources on Class I areas outside of the State. Under the RH Rule, States must establish reasonable progress goals which provide for an improvement in visibility for the most impaired, or worst days, and no degradation on the best days (
Under CAA section 110(a)(2)(D), the measures relied on by Colorado to make a demonstration that it does not interfere with other States' measures to protect visibility in their RH SIP have to be approved by EPA as part of a SIP and made Federally enforceable. As mentioned above, the State's demonstration relies on potential RH SIP emission reductions that have not been approved by EPA. EPA conducted a weight of evidence analysis on Canyonlands National Park, the most impacted Class I area to determine Colorado's impact if non-Federally enforceable measures were not included in the demonstration. EPA's weight of evidence analysis includes a recalculation of the reasonable progress goal to reflect the addition of non-
EPA recalculated the reasonable progress goal to determine approximate changes to visibility impacts at Canyonlands due to emission increases. To account for measures that are not Federally enforceable, EPA increased the Colorado emission inventory 45,700 tons for sulfates and 5,200 tons for nitrates from the emission inventory used for Colorado in the WRAP 2018 reasonable progress modeling. To calculate the approximate visibility impact from this change, the following procedure was followed: (1) Recalculate the baseline haze index (2000-2004) using daily 20% worst case monitored species extinction from WRAP data; (2) recalculate 2018 predicted reasonable progress goal haze index by applying Class I area specific annual relative response factors (RRFs) provided by WRAP to the daily 20% worst case monitored for each pollutant; (3) assume that Colorado's relative contribution of nitrates and sulfates identified by WRAP tracer modeling for the 2018 base case is the same for the 2018 reasonable progress case; (4) rescale sulfate extinction and nitrate extinction in step 2 to account for Colorado emissions that are not Federally enforceable; and (5) recalculate the reasonable progress goals that would be expected. This method of approximating the change in the haze index, given in deciviews (dv),
EPA also analyzed WEP information developed by the WRAP. The WEP analysis was developed as a screening tool for States to decide which source regions have the potential to contribute to haze formation in Class I areas, based on annual emissions inventories, baseline period back trajectories, and source to Class I area distances. The WEP analyses also show that Colorado has a minimal impact on visibility at Canyonlands.
The RH Rule also requires States ensure no degradation of visibility on the best days. The WRAP modeling projects that visibility on the best days will not degrade in 2018 at any of the surrounding Class I areas. For example, modeling indicates that the visibility at Canyonlands on the best days is expected to improve from 3.8 dv to 3.5 dv. Accordingly, EPA finds that Colorado does not interfere with another States' ability to ensure no degradation of visibility on the best days.
Based on the information presented above, EPA concludes that Colorado does not interfere with Utah's measures to protect visibility at Canyonlands National Park. Since Colorado impacts Canyonlands more than any other out of State Class I area, Colorado's impacts on other Class I areas, including Bandelier, would be even less. EPA thus has determined that Colorado does not interfere with other States' measures to protect visibility in their RH SIP.
EPA is proposing partial approval of the March 31, 2010 Colorado Interstate Transport SIP revisions submission. Specifically, in this action EPA is proposing to approve subsections 3.1, 3.2 and 3.3, addressing the “interference with protection of visibility” requirement for the 1997 ozone NAAQS, and subsections 6.1, 6.2 and 6.3, addressing the “interference with protection of visibility” requirement for the 1997 PM
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile Organic Compounds.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
EPA proposes to approve the State Implementation Plan (SIP) revision submitted by the Commonwealth of Virginia consisting of the amended wording of the definition of “Volatile organic compound” (VOC). In the Final Rules section of this
Comments must be received in writing by March 16, 2011.
Submit your comments, identified by Docket ID Number EPA-R03-OAR-2010-0902 by one of the following methods:
A.
B.
C.
D.
Harold A. Frankford, (215) 814-2108, or by e-mail at
For further information, please see the information provided in the direct final action, with the same title, that is located in the “Rules and Regulations” section of this
In proposed rule document 2011-1061, appearing on pages 3590-3595, in the issue of Thursday, January 20, 2011, make the following correction:
On page 3592 in § 67.4, under
Maps are available for inspection at the Nowata County Office, 229 North Maple Street, Nowata, OK 74048.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
This proposed rule would change the advance notification period for in-season closure of the main Hawaiian Islands (MHI) Deep-7 bottomfish fishery to seven days from
Comments on the amendment must be received by March 1, 2011.
Comments on the proposed rule, identified by 0648-BA58, may be sent to either of the following addresses:
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Jarad Makaiau, NMFS PIR Sustainable Fisheries, 808-944-2108.
The MHI Deep 7 bottomfish are onaga (
Pursuant to Federal regulations at 50 CFR 665.211, when the specified TAC is projected to be reached, NMFS notifies fishermen and the public of the date when the non-commercial and commercial Deep-7 bottomfish fisheries will be closed, through a notice in the
Trip reports submitted to the State of Hawaii by the 500+ state CML holders who reported fishing for bottomfish indicate that the vast majority of fishermen engage in single day trips, i.e., lasting less than 24 hours. Only 12 fishermen reported multi-day bottomfish trips, and those trips lasted only three days or less. Based on this information about the fishery, and on the need for more time to process the closure notice, the Council recommended that NMFS shorten the advance notice period to seven days.
The objective of the proposed action is to enhance administration of the fishery by streamlining the advanced notification period. A seven-day notification period would continue to provide ample time for fishermen to be made aware of the in-season closure. (By comparison, NMFS provides seven days advance notification when closing the commercial longline fishery; this has been ample time for longliners, even when their trips last up to six weeks.) Additionally, shortening the advance notification period from 14 to seven days allows the agency to determine the projected closure date closer to the actual closure. This is because the seven additional days can be allocated to processing and analyzing catch data. This could increase precision in forecasting the closure date, and also facilitate adherence to the catch limit by reducing the number of days fish could be caught once a closure notice is announced.
Up-to-date catch information is posted at
To be considered, comments on this proposed rule must be received by March 1, 2011, not postmarked or otherwise transmitted by that date.
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1854(b)(1)(A), the NMFS Assistant Administrator has determined that this proposed rule is consistent with the Fishery Ecosystem Plan for the Hawaiian Archipelago, other provisions of the Magnuson-Stevens Act, and other applicable laws, subject to further consideration after public comment.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The analysis follows:
The proposed rule is administrative in nature, and would change the advance notification period for closure of the main Hawaiian Islands (MHI) Deep-7 bottomfish fishery to seven days from the current 14 days. A description of the action, why it is being considered, and the legal basis are contained in the preamble to this proposed rule.
All fishing vessels that participate in the MHI Deep 7 bottomfish fishery are considered to be small entities under the Small Business Administration definition of a small entity, i.e., they are engaged in the business of fish harvesting, are independently-owned or operated, are not dominant in their field of operation, and have annual gross receipts not in excess of $4 million. Therefore, there are no disproportionate economic impacts between large and small entities, and the proposed action is not expected to have any impact on these small entities. Trip reports submitted to the State of Hawaii by the 500+ state CML holders who reported fishing for bottomfish indicate that the vast majority of fishermen engage in single day trips, i.e., lasting less than 24 hours. Only 12 fishermen reported multi-day bottomfish trips, and those trips lasted only three days or less. Therefore, a seven-day notification period would provide ample time for all fishery participants to be made aware of the in-season closure. Additionally, shortening the advance
This rule does not duplicate, overlap, or conflict with other Federal rules.
As a result, an initial regulatory flexibility analysis is not required and none has been prepared.
Bottomfish, Fishing, Hawaii.
For the reasons set out in the preamble, 50 CFR part 665 is proposed to be amended as follows:
l. The authority citation for part 665 continues to read as follows:
16 U.S.C. 1801
2. In § 665.211, revise paragraph (c) to read as follows:
(c) When the TAC limit specified in this section is projected to be reached based on analyses of available information, the Regional Administrator shall publish a notice to that effect in the
Forest Service, USDA.
Notice of public meeting, Cherokee National Forest Resource Advisory Committee.
In accordance with the Secure Rural Schools and Community Self Determination Act of 2000 (Pub. L. 106-393), [as reauthorized as part of Public Law 110-343] and the Federal Advisory Committee Act of 1972 (FACA), the U.S. Department of Agriculture, Forest Service, Cherokee National Forest Resource Advisory Committee will meet as indicated below.
The Cherokee National Forest Resource Advisory Committee meeting will be conducted on Thursday, March 10, 2011 from 12:30-4:30 p.m.
McGhee Tyson Airport, 2055 Alcoa Highway, Alcoa, TN 37701. Meeting visitors should park in the main airport parking garage and bring their parking ticket to the meeting for validation. Take the centrally located elevator in the passenger terminal to the 3rd floor and see the receptionist for directions to the meeting room.
Terry Bowerman, Designated Federal Official, Cherokee National Forest, 4900 Asheville Hwy SR 70, Greeneville, TN 37743: Telephone: 423-638-4109, e-mail
The Cherokee National Forest Resource Advisory Committee (RAC) proposes projects and funding to the Secretary of Agriculture under Section 203 of the Secure Rural Schools and Community Self Determination Act of 2000, (as reauthorized as part of Pub. L. 110-343). The Cherokee National Forest RAC consists of 15 people selected to serve on the committee by Secretary of Agriculture Tom Vilsack. Two Tennessee counties, Cocke and Monroe, are setting aside a percentage of their Secure Rural Schools Act payment under Title II of the Act to be used for projects on federal land. The RAC will ultimately review and recommend projects to be funded from this money. Projects approved must benefit National Forests lands. Projects can maintain infrastructure, improve the health of watersheds and ecosystems, protect communities, and strengthen local economies. The agenda for the March 10th meeting of the Cherokee National Forest RAC will focus on review and consideration of proposed projects. RAC meetings are open to the public.
Forest Service, USDA.
Notice of meeting.
The Ashley Resource Advisory Committee will meet in Vernal, Utah. The committee is meeting as authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L. 110-343) and in compliance with the Federal Advisory Committee Act. The purpose of the meeting is conduct introductions, approve meeting minutes, develop and finalize evaluation criteria for the ranking of recommended projects, set the next meeting date, time and location and receive public comment on the meeting subjects and proceedings.
The meetings will be held March 17, 2011, from 6 p.m. to 8 p.m.
The meeting will be held in the Interagency Fire Dispatch Center conference room at the Ashley National Forest Supervisor's Office, 355 North Vernal Avenue in Vernal, Utah. Written comments should be sent to Ashley National Forest, 355 North Vernal Avenue, Vernal, UT 84078. Comments may also be sent via e-mail to
All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at Ashley National Forest, 355 North Vernal Avenue, Vernal, UT.
Louis Haynes, RAC Coordinator, Ashley National Forest, (435) 781-5105; e-mail:
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Standard Time, Monday through Friday.
The meeting is open to the public. The following business will be conducted: (1) Welcome and roll call; (2) Approval of meeting minutes; (3) Creation and approval of evaluation criteria to be used to rank order recommended projects; (4) Review of next meeting purpose, location, and date; (5) Receive public comment. Persons who wish to bring related matters to the attention of the Committee may file written statements with the committee staff before or after the meeting. Public input sessions will be provided and individuals who made written requests by March 10, 2011 will have the opportunity to address the committee at these meetings.
Forest Service, USDA.
Notice of meeting.
The Del Norte Resource Advisory Committee (RAC) will meet in Crescent City, California. The committee meeting is authorized under the Secure Rural Schools and Community Self-Determination (SRS) Act (Pub. L. 110-343) and in compliance with the Federal Advisory Committee Act.
The meeting will be held February 28, 2011, from 5 p.m. to 9 p.m.
The meeting will be held at the Del Norte County Unified School District, Redwood Room, 301 West Washington Boulevard, Crescent City, California 95531.
Adam Dellinger, Committee Coordinator, Six Rivers National Forest, at (707) 441-3569; e-mail
The Del Norte RAC will review applications received during the 2nd round of proposal solicitations and will vote on projects to recommend for funding. The meeting is open to the public and there will also be a public comment opportunity.
Forest Service, USDA.
Notice of meeting.
The White Pine-Nye County Resource Advisory Committee (RAC) will hold a meeting.
The meeting will be held on March 2nd, 2011 and will begin at 9 a.m.
The meeting will be held in Eureka County at the Eureka Opera House, 31 S. Main Street, Eureka, Nevada 89316.
Jose Noriega, RAC Coordinator, USDA, Humboldt-Toiyabe National Forest, Ely Ranger District, 825 Avenue E Ely, NV 89301 (775) 289-3031; e-mail
Agenda items include: (1) Review and approve operating guidelines, (2) Review and approve meeting and business expenses, (3) Review and recommend funding allocation for proposed projects, (4) Determine timeframes for the next round of project proposals, (5) Public Comment. The meeting is open to the public. Public input opportunity will be provided and individuals will have the opportunity to address the Committee at that time.
Rural Business-Cooperative Service, USDA.
Notice.
This Notice is to invite applications for loans and grants under the Rural Economic Development Loan and Grant (REDLG) program pursuant to 7 CFR part 4280, subpart A for Fiscal Year (FY) 2011 subject to the availability of funding. The commitment of program dollars will be made to applicants of selected responses that have fulfilled the necessary requirements for obligation. Expenses incurred in developing applications will be at the applicant's risk. Historically, on an annual basis, Congress has appropriated $33 million for loans and $10 million for grants for these programs. This Notice is being issued prior to passage of a FY 2011 Appropriations Act, which may or may not provide an appropriation for these programs, to allow applicants sufficient time to leverage financing, submit applications, and give the Agency time to process applications within FY 2011. A subsequent notice identifying the amount received in the appropriations will be published, if any.
The deadline for receipt of applications in the USDA Rural Development State Office is: Third Quarter, March 31, 2011; and Fourth Quarter, June 30, 2011.
Submit applications in paper format to the USDA Rural Development State Office in the state where your project is located. A list of the USDA Rural Development State Offices addresses and telephone numbers are as follows:
The Rural Development State Office identified in this Notice where the project will be located.
The regulations for these programs are at 7 CFR part 4280, subpart A. The primary objective of the program is to promote rural economic development and job creation projects. Assistance provided to rural areas, as defined, under this program may include business startup costs, business expansion, business incubators, technical assistance feasibility studies, advanced telecommunications services and computer networks for medical, educational, and job training services and community facilities projects for economic development. Awards are made on a competitive basis using specific selection criteria contained in 7 CFR part 4280, subpart A. Information
The definitions are published at 7 CFR 4280.3.
Loans and grants may be made to any entity that is identified by USDA Rural Development as an eligible borrower under the Rural Electrification Act. In accordance with 7 CFR 4280.13, applicants that are not delinquent on any Federal debt or otherwise disqualified from participation in these programs are eligible to apply. An applicant must be eligible under 7 U.S.C. 940c.
For loans, either the Ultimate Recipient or the Intermediary must provide supplemental funds for the project equal to at least 20 percent of the loan to the Intermediary. For grants, the Intermediary must provide supplemental funds for the project equal to at least 20 percent of the grant to the Intermediary.
Applications will only be accepted for projects that promote rural economic development and job creation.
Applications will not be considered for funding if they do not provide sufficient information to determine eligibility or are missing required elements.
For further information, entities wishing to apply for assistance should contact the Rural Development State Office identified in this Notice to obtain copies of the application package.
Applicants are encouraged to submit applications through the Grants.gov Web site at:
• When you enter the Grants.gov Web site, you will find information about submitting an application electronically through the site as well as the hours of operation. USDA Rural Development strongly recommends that you do not wait until the application deadline date to begin the application process through Grants.gov. To use Grants.gov, applicants must have a Dun and Bradstreet Data Universal Numbering System (DUNS) number which can be obtained at no cost via a toll-free request line at 1-866-705-5711 or at
• You may submit all documents electronically through the Web site, including all information typically included on the application for REDLGs and all necessary assurances and certifications.
• After electronically submitting an application through the Web site, the applicant will receive an automatic acknowledgement from Grants.gov that contains a Grants.gov tracking number.
• USDA Rural Development may request that the applicant provide original signatures on forms at a later date.
• If applicants experience technical difficulties on the closing date and are unable to meet the deadline, you may submit a paper copy of your application to your respective Rural Development State Office. Paper applications submitted to a Rural Development State Office must meet the closing date and local time deadline.
Please note that applicants must locate the downloadable application package for this program by the Catalog of Federal Domestic Assistance Number or FedGrants Funding Opportunity Number, which can be found at
An application must contain all of the required elements. Each selection priority criterion outlined in 7 CFR 4280.42(b), must be addressed in the application. Failure to address any of the criteria will result in a zero-point score for that criterion and will impact the overall evaluation of the application. Copies of 7 CFR part 4280, subpart A, will be provided to any interested applicant making a request to a Rural Development State Office listed in this notice.
The National Office will score applications based on the grant selection criteria and weights contained in 7 CFR part 4280, subpart A, and will select an Intermediary subject to the Intermediary's satisfactory submission of the additional items required by 7 CFR part 4280, subpart A and the USDA Rural Development Letter of Conditions.
Successful applicants will receive notification for funding from the Rural Development State Office. Applicants must comply with all applicable statutes and regulations before the loan/grant award will be approved. Provided the application requirements have not changed, an application not selected will be reconsidered in three subsequent funding competitions for a total of four competitions. If an application is withdrawn, it can be resubmitted and will be evaluated as a new application.
Additional requirements that apply to Intermediary's selected for this program can be found in 7 CFR part 4280, subpart A. Applicable provisions of 7 CFR parts 3015, 3019, and 3052 also apply.
For general questions about this announcement, please contact your
In accordance with the Paperwork Reduction Act of 1995, the information collection requirement contained in this Notice is approved by the Office of Management and Budget (OMB) under OMB Control Number 0570-0024.
“The U.S. Department of Agriculture (USDA) prohibits discrimination in all its programs and activities on the basis of race, color, national origin, age, disability, and where applicable, sex, marital status, familial status, parental status, religion, sexual orientation, genetic information, political beliefs, reprisal, or because all or part of an individual's income is derived from any public assistance program. (Not all prohibited bases apply to all programs.) Persons with disabilities who require alternative means for communication of program information (Braille, large print, audiotape, etc.) should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD).
To file a complaint of discrimination, write to USDA, Director, Office of Adjudication and Compliance, 1400 Independence Avenue, SW., Washington, DC 20250-9410, or call (800) 795-3272 (voice), or (202) 720-6382 (TDD). USDA is an equal opportunity provider, employer, and lender.”
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35).
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, (202) 482-0266, Department of Commerce, Room 6616, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
International Trade Administration.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before April 15, 2011.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to David A. Ritchie, U.S. Department of Commerce, Office of Technology and Electronic Commerce,
The Office of Technology and Electronic Commerce in the Manufacturing and Services unit of the International Trade Administration (ITA) administers the U.S.-European Union (EU) and U.S.-Swiss Safe Harbor Frameworks. These Frameworks allow U.S. companies to meet the requirements of the European Union's Data Protection Directive and the Swiss Federal Act on Data Protection, respectively. This is significant because the Frameworks ensure uninterrupted transfers of personal information worth billions of dollars in trade between the United States and the EU and Switzerland.
In line with the President's National Export Initiative, ITA is interested in gathering information from U.S. companies that use the U.S.-EU and U.S.-Swiss Safe Harbor Frameworks to better evaluate the programs and how they support U.S. exports. The information will be obtained via a survey using the following questions:
(1) Does your company's participation in the U.S.-EU or U.S.-Swiss Safe Harbor programs help your company increase U.S. exports and support U.S. jobs? Please explain.
(2) Please specify the approximate amount of exports in United States Dollars (USD) facilitated by your company's participation in the U.S.-EU or U.S.-Swiss Safe Harbor programs
(3) How much of your annual sales/exports to Europe, Switzerland, or other parts of the world are dependent on self-certification to the U.S.-EU or U.S.-Swiss Safe Harbor programs?
(4) Does your company currently have a contract that is dependent on self-certification to the U.S.-EU or U.S.-Swiss Safe Harbor programs? If so, what is the value of that contract(s)?
(5) What do the U.S.-EU and U.S.-Swiss Safe Harbor programs mean to your company in terms of business opportunities in Europe?
(6) Tell us what you think about the U.S.-EU and U.S.-Swiss Safe Harbor programs?
The information will be collected via an electronic form on the Safe Harbor Web site (
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (“Department”) is conducting an administrative review of the antidumping duty order on certain frozen warmwater shrimp (“shrimp”) from the People's Republic of China (“PRC”), covering the period of review (“POR”) of February 1, 2009, through January 31, 2010. As discussed below, the Department preliminarily determines that the respondent in this review did not make sales in the United States at prices below normal value (“NV”) during the POR.
Kabir Archuletta, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone (202) 482-2593.
The Department received timely requests from members of the Ad Hoc Shrimp Trade Action Committee (“Petitioner”) and the American Shrimp Processors Association and the Louisiana Shrimp Association (collectively, “domestic parties”), in accordance with 19 CFR 351.213(b), during the anniversary month of February, for administrative reviews of the antidumping duty order on shrimp from the PRC. On April 9, 2010, the Department initiated an administrative review of 92 producers/exporters of subject merchandise from the PRC.
Between April 15, 2010, and April 27, 2010, the following companies submitted “no shipment certifications”
On July 6, 2010, Petitioner withdrew its request for an administrative review of Allied Pacific Aquatic Products (Zhanjiang) Co., Ltd. and Allied Pacific Food (Dalian) Co., Ltd. Petitioner was the only party to request a review of these companies. Accordingly, on July 20, 2010, the Department published a partial rescission with respect to these two companies.
On May 17, 2010, in accordance with section 777A(c)(2) of the Tariff Act of 1930, as amended (“Act”), the Department selected Hilltop International (“Hilltop”) for individual examination in this review, since it was the largest exporter by volume during the POR, based on U.S. Customs and Border Protection (“CBP”) data of U.S. imports.
On May 18, 2010, the Department issued its initial non-market economy (“NME”) antidumping duty questionnaire to Hilltop, and issued supplemental questionnaires to Hilltop between July 2010 and November 2010. Hilltop responded to the Department's initial and subsequent supplemental questionnaires between June 2010 and November 2010.
On July 20, 2010, the Department sent interested parties a letter requesting comments on the surrogate country and information pertaining to the valuation of factors of production (“FOPs”). On August 31, 2010, the Department received comments from Hilltop and Petitioner regarding selection of a surrogate country. On September 10, 2010, the Department received comments from Hilltop, domestic parties and Petitioner regarding selection of surrogate country and valuation of FOPs. On September 20, 2010, the Department received rebuttal comments from Hilltop regarding surrogate value submissions.
On September 17, 2010, in accordance with section 751(a)(3)(A) of the Act, we extended the time period for issuing the preliminary results by 120 days, until February 28, 2011.
The scope of the order includes certain frozen warmwater shrimp and prawns, whether wild-caught (ocean harvested) or farm-raised (produced by aquaculture), head-on or head-off, shell-on or peeled, tail-on or tail-off,
The frozen warmwater shrimp and prawn products included in the scope of the order, regardless of definitions in the Harmonized Tariff Schedule of the United States (“HTS”), are products which are processed from warmwater shrimp and prawns through freezing and which are sold in any count size.
The products described above may be processed from any species of warmwater shrimp and prawns. Warmwater shrimp and prawns are generally classified in, but are not limited to, the
Frozen shrimp and prawns that are packed with marinade, spices or sauce are included in the scope of the order. In addition, food preparations, which are not “prepared meals,” that contain more than 20 percent by weight of shrimp or prawn are also included in the scope of the order.
Excluded from the scope are: (1) Breaded shrimp and prawns (HTS subheading 1605.20.1020); (2) shrimp and prawns generally classified in the
The products covered by the order are currently classified under the following HTS subheadings: 0306.13.0003, 0306.13.0006, 0306.13.0009, 0306.13.0012, 0306.13.0015, 0306.13.0018, 0306.13.0021, 0306.13.0024, 0306.13.0027, 0306.13.0040, 1605.20.1010 and 1605.20.1030. These HTS subheadings are provided for convenience and for customs purposes only and are not dispositive, but rather the written description of the scope of the order is dispositive.
Based on the evidence on the record in this administrative review, including information found in Hilltop's questionnaire responses, the Department preliminarily finds affiliation between Hilltop and Yangjiang City Yelin Hoitat Quick Frozen Seafood Co., Ltd. and Fuqing Yihua Aquatic Food Co., Ltd., producers of subject merchandise, pursuant to section 771(33)(F) of the Act. Further, we preliminarily find Hilltop affiliated with Yelin Enterprise Co., Ltd., Ocean Beauty Corporation, and Ever Hope International Co., Ltd., Taiwanese resellers of subject merchandise, pursuant to 771(33)(A) and (F) of the Act. Lastly, we preliminarily find affiliation between Hilltop and Ocean Duke Corporation, a U.S. importer of subject merchandise, pursuant to sections 771(33)(A) and (F) of the Act.
Based on the evidence presented in Hilltop's questionnaire responses, we preliminarily find that Hilltop, Yelin Enterprise Co., Ltd., Ocean Beauty Corporation, and Ever Hope International Co., Ltd., should be treated as a single entity for the purposes of this administrative review. This finding is based on our determination that Yelin Enterprise Co., Ltd., Ocean Beauty Corporation, and Ever Hope International Co., Ltd., are involved in the export of subject merchandise sold by Hilltop and that a significant potential for manipulation of price or production exists between these entities.
As discussed in the
On May 11, 2010, the Department sent an inquiry to CBP to determine whether CBP entry data is consistent with the statements of Allied Pacific Aquatic Products Zhanjiang Co. Ltd. and Allied Pacific Food (Dalian) Co., Ltd.
On May 17, 2010, the Department sent an inquiry to CBP to confirm the claims made by Yelin Frozen Seafood Co., Ltd. (d.b.a. Shantou Yelin Quick-Freeze Marine Products Co., Ltd.); Yangjiang City Yelin Hoitat Quick Frozen Seafood Co., Ltd.; Fuqing Yihua Aquatic Food Co., Ltd.; and Fuqing Minhua Trading Co., Ltd.
In every case conducted by the Department involving the PRC, the PRC has been treated as an NME country. In accordance with section 771(18)(C)(i) of the Act, any determination that a foreign country is an NME country shall remain in effect until revoked by the administering authority.
A designation of a country as an NME remains in effect until it is revoked by the Department.
In the
In this administrative review, Zhanjiang Regal (“Regal”) is the only company that submitted a separate rate certification.
Hilltop has reported that it is a Hong Kong based exporter of subject merchandise.
In the
In accordance with section 777A(c)(2)(B) of the Act, the Department employed a limited examination methodology, as it did not have the resources to examine all companies for which a review request was made. As stated above, the Department selected Hilltop as the mandatory respondent in this review. In addition to the mandatory respondent, only Regal submitted timely information as requested by the Department and remains subject to review as a cooperative separate rate respondent.
We note that the statute and the Department's regulations do not directly address the establishment of a rate to be applied to individual companies not selected for examination where the Department limited its examination in an administrative review pursuant to section 777A(c)(2) of the Act. The Department's practice in cases involving limited selection based on exporters accounting for the largest volumes of trade has been to look to section 735(c)(5) of the Act, which provides instructions for calculating the all-others rate in an investigation, for guidance. Section 735(c)(5)(A) of the Act instructs that we are not to calculate an all-others rate using any zero or
In exercising this discretion to determine a non-examined rate, the Department considers relevant the fact that section 735(c)(5) of the Act: (a) Is explicitly applicable to the determination of an all-others rate in an investigation; and (b) articulates a preference that the Department avoid zero,
We note that the Department has sought other reasonable means to assign separate-rate margins to non-reviewed companies in instances with calculated zero rates,
In
Thus, we find that a reasonable method in the instant review is to assign to the non-reviewed company, Regal, its most recent calculated rate. Pursuant to this method, we are preliminarily assigning a rate of zero to Regal, its calculated rate in the previous administrative review.
We have preliminarily determined that 80 companies did not demonstrate their eligibility for a separate rate and are properly considered part of the PRC-wide entity. As explained above in the
When the Department investigates imports from an NME country, section 773(c)(1) of the Act directs it to base NV, in most circumstances, on the NME producer's FOPs, valued in a surrogate market economy country or countries considered to be appropriate by the Department. In accordance with section 773(c)(4) of the Act, in valuing the FOPs, the Department shall utilize, to the extent possible, the prices or costs of FOPs in one or more market economy countries that are at a level of economic development comparable to that of the NME country and significant producers of comparable merchandise. The sources of the surrogate factor values are discussed under the
As discussed in the
For Hilltop's sales, we based U.S. price on constructed export price (“CEP”) in accordance with section 772(b) of the Act, because sales were made on behalf of Hilltop by its U.S. affiliate to unaffiliated purchasers in the United States. For these sales, we based CEP on prices to the first unaffiliated purchaser in the United States. Where appropriate, we made deductions from the starting price (gross unit price) for foreign movement expenses, international movement expenses, U.S. movement expenses, and appropriate selling expenses, in accordance with section 772(c)(2)(A) of the Act.
In accordance with section 772(d)(1) of the Act, we also deducted those selling expenses associated with economic activities occurring in the United States. We deducted, where appropriate, commissions, inventory carrying costs, credit expenses, and indirect selling expenses. Where foreign movement expenses, international movement expenses, or U.S. movement expenses were provided by Chinese service providers or paid for in Chinese renminbi, we valued these services using surrogate values.
Section 773(c)(1)(B) of the Act provides that the Department shall determine the NV using an FOP methodology if the merchandise is exported from an NME and the information does not permit the calculation of NV using home-market prices, third-country prices, or constructed value under section 773(a) of the Act. The Department bases NV on the FOPs because the presence of government controls on various aspects of NMEs renders price comparisons and the calculation of production costs invalid under the Department's normal methodologies.
In accordance with section 773(c) of the Act, we calculated NV based on FOP data reported by the respondents for the POR. To calculate NV, we multiplied the reported per-unit factor-consumption rates by publicly available surrogate values (except as discussed below).
In selecting the surrogate values, we considered the quality, specificity, and contemporaneity of the data. As appropriate, we adjusted input prices by including freight costs to make them delivered prices. We added to each Indian import surrogate value a surrogate freight cost calculated from the shorter of the reported distance from the domestic supplier to the factory or the distance from the nearest seaport to the factory, where appropriate.
The Department used Indian import statistics from Global Trade Atlas to value the raw material and packing material inputs that Hilltop used to produce subject merchandise during the POR, except where listed below.
To value shrimp larvae, the Department used the 2008-2009 annual report of Sharat Industries Ltd. We find this to be the best source on the record because it is contemporaneous with the POR and is based on actual market prices.
We valued electricity using the updated electricity price data for small, medium, and large industries, as published by the Central Electricity Authority, an administrative body of the Government of India, in its publication titled
On May 14, 2010, the Court of Appeals for the Federal Circuit (“CAFC”) in
For the preliminary results of this administrative review, the Department is valuing labor using a simple average industry-specific wage rate using earnings or wage data reported under Chapter 5B by the International Labor Organization (“ILO”). To achieve an industry-specific labor value, we relied on industry-specific labor data from the countries we determined to be both economically comparable to the PRC, and significant producers of comparable merchandise. A full description of the industry-specific wage rate calculation methodology is provided in the Surrogate Value Memo. The Department calculated a simple average industry-specific wage rate of $1.36 for these preliminary results. Specifically, for this review, the Department has calculated the wage rate using a simple average of the data provided to the ILO under Sub-Classification 15 of the ISIC-Revision 3 standard by countries determined to be both economically comparable to the PRC and significant producers of comparable merchandise. The Department finds the two-digit description under ISIC-Revision 3 (“Manufacture of Food Products and Beverages”) to be the best available wage rate surrogate value on the record because it is specific and derived from industries that produce merchandise comparable to the subject merchandise. Consequently, we averaged the ILO industry-specific wage rate data or earnings data available from the following countries found to be economically comparable to the PRC and significant producers of comparable merchandise: Ecuador, Egypt, Indonesia, Jordan, Peru, the Philippines, Thailand, and Ukraine. For further information on the calculation of the wage rate,
To value water, the Department used data from the Maharashtra Industrial Development Corporation (
We valued diesel using data from the International Energy Agency publication
To value truck freight expenses, we used a per-unit average rate calculated from data on the Info Banc Web site:
We valued brokerage and handling using a price list of export procedures necessary to export a standardized cargo of goods in India. The price list is compiled based on a survey case study of the procedural requirements for trading a standard shipment of goods by ocean transport in India that is published in
To value factory overhead, sales, general and administrative expenses, and profit, we relied upon publicly available information in the 2008-2009 annual report of Falcon Marine Exports Ltd., an integrated Indian producer of subject merchandise.
Where appropriate, we made currency conversions into U.S. dollars, in accordance with section 773A(a) of the Act, based on the exchange rates in effect on the dates of the U.S. sales as certified by the Federal Reserve Bank.
The Department has determined that the following preliminary dumping margins exist for the period February 1, 2009, through January 31, 2010:
As
The Department will disclose calculations performed for these preliminary results to the parties within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b).
In accordance with 19 CFR 351.301(c)(3)(ii), for the final results of this administrative review, interested parties may submit publicly available information to value FOPs within 20 days after the date of publication of these preliminary results. Interested parties must provide the Department with supporting documentation for the publicly available information to value each FOP. Additionally, in accordance with 19 CFR 351.301(c)(1), for the final results of this administrative review, interested parties may submit factual information to rebut, clarify, or correct factual information submitted by an interested party less than ten days before, on, or after, the applicable deadline for submission of such factual information. However, the Department notes that 19 CFR 351.301(c)(1) permits new information only insofar as it rebuts, clarifies, or corrects information recently placed on the record. The Department generally cannot accept the submission of additional, previously absent-from-the-record alternative surrogate value information pursuant to 19 CFR 351.301(c)(1).
Interested parties may submit case briefs and/or written comments no later than 30 days after the date of publication of these preliminary results of review.
The Department will issue the final results of this administrative review, which will include the results of its analysis of issues raised in any such comments, within 120 days of publication of these preliminary results, pursuant to section 751(a)(3)(A) of the Act.
Upon issuance of the final results, the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries covered by these reviews. The Department intends to issue assessment instructions to CBP 15 days after the publication date of the final results of this review. In accordance with 19 CFR 351.212(b)(1), for the mandatory respondent, we calculated an exporter/importer (or customer)-specific assessment rate for the merchandise subject to this review. Where the respondent has reported reliable entered values, we calculated importer (or customer)-specific
Where we do not have entered values for all U.S. sales, we calculated a per-unit assessment rate by aggregating the antidumping duties due for all U.S. sales to each importer (or customer) and dividing this amount by the total quantity sold to that importer (or customer).
For the companies receiving a separate rate that were not selected for individual review, we will assign an assessment rate based on the cash deposit rate calculated pursuant to section 735(c)(5)(B) of the Act. Where the weighted average
For those companies for which this review has been preliminarily rescinded,
The following cash-deposit requirements will be effective upon publication of the final results for shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results, as provided by section 751(a)(2)(C) of the Act: (1) For the exporters listed above, the cash deposit rate will be that established in the final results of review (except, if the rate is zero or
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This administrative review and this notice are in accordance with sections 751(a)(1) and 777(i) of the Act, and 19 CFR 351.213 and 351.221(b)(4).
In notice document 2011-2883 on page 7150 in the issue of Wednesday, February 9, 2011, make the following correction:
On page 7150, in the third column, in the signature block, “Dated: January 31, 2010” should read “Dated: January 31, 2011”.
In notice document 2011-2884 appearing on pages 7151-7152 in the issue of Wednesday, February 9, 2011, make the following correction:
On page 7152, in the first column, in the signature block, “Dated: January 31, 2010” should read “Dated: January 31, 2011”.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of availability; recovery plan module for Columbia River estuary salmon and steelhead.
NMFS announces the adoption of the Columbia River Estuary Endangered Species Act (ESA) Recovery Plan Module for Salmon and Steelhead (Estuary Module). The Estuary Module addresses the estuary recovery needs of all ESA-listed salmon and steelhead in the Columbia River Basin. All Columbia Basin salmon and steelhead ESA recovery plans will incorporate the Estuary Module by reference.
For additional information about the Estuary Module, contact Patty Dornbusch, NMFS, 1201 NE Lloyd Boulevard, Suite 1100, Portland, OR 97232. Electronic copies of the Estuary Module and a response to public comments on the Proposed Estuary Module are available online at
Patty Dornbusch, (503) 230-5430.
The Endangered Species Act of 1973 (ESA), as amended (16 U.S.C.
In the Columbia River basin, the following salmon evolutionarily significant units (ESUs) and steelhead distinct population segments (DPSs) are listed as threatened or endangered under the ESA: Snake River Sockeye salmon, Snake River spring/summer Chinook salmon, Snake River fall Chinook salmon, Snake River steelhead, Upper Columbia River spring Chinook salmon, Upper Columbia River steelhead, Middle Columbia River steelhead, Lower Columbia River Chinook salmon, Lower Columbia River coho salmon, Columbia River chum salmon, Lower Columbia River steelhead, Upper Willamette River spring Chinook salmon, and Upper Willamette River steelhead. Recovery plans are either complete or in development for these 13 salmon ESUs and steelhead DPSs.
Because we believe that local support for recovery plans is essential, we have approached recovery planning collaboratively, with strong reliance on existing state, regional, and tribal planning processes. For instance, in the Columbia Basin, recovery plans have been or are being developed by regional recovery boards convened by Washington State, by the State of Oregon in conjunction with stakeholder teams, and by NMFS in Idaho with the participation of local agencies. We review locally developed recovery plans, ensure that they satisfy ESA requirements, and make them available for public review and comment before formally adopting them as ESA recovery plans.
Recovery plans must consider the factors affecting species survival throughout the entire life cycle. The salmonid life cycle includes spawning and rearing in the tributaries, migrating through the mainstem Columbia River and estuary to the ocean, and returning to the natal stream. In the estuary, juvenile and adult salmon and steelhead undergo physiological changes needed to make the transition to and from saltwater. They use the varying sub-habitats of the estuary—the shallows,
While local recovery planners appropriately focus on the tributary conditions within their jurisdictions and domains, NMFS recognized the need for consistent treatment of the factors in the estuary that affect all of the listed salmon and steelhead in the Columbia Basin. The Estuary Module addresses limiting factors, threats, and needed actions in the Columbia River estuary for the 13 ESUs and DPSs of salmon and steelhead listed in the basin. Each locally developed recovery plan will incorporate by reference the Estuary Module as its estuary component.
This approach will ensure consistent treatment across locally developed recovery plans of the effects of the Columbia River estuary as well as a system-wide approach to evaluating and implementing estuary recovery actions. The planning area of the Estuary Module overlaps to some extent with the planning areas for locally developed plans for lower Columbia River tributaries. This overlap occurs in the tidally influenced portions of the tributaries, and in such instances the local plans will reflect the Estuary Module but may specify actions at a higher level of detail.
The Estuary Module was developed for NMFS by the Lower Columbia River Estuary Partnership (Estuary Partnership), contractor, and PC Trask & Associates, Inc., sub-contractor. The Estuary Partnership was established in 1995 as part of the Environmental Protection Agency's National Estuary Program. The Estuary Partnership's major roles are to convene common interests, help integrate conservation efforts, increase public awareness and involvement, and promote information-based problem solving. The Estuary Partnership is one of the primary organizations focused on conserving and improving the environment of the Columbia River estuary. The Partnership's expertise in assessment, planning, and stakeholder connections made it uniquely suited to develop this Estuary Module. PC Trask & Associates, Inc., is an environmental planning and project management firm with a focus on projects related to the Columbia River estuary. The firm also works with Federal, state, and local project sponsors to identify and implement ecosystem-related restoration projects in the estuary.
NMFS made the draft Estuary Module available for public review as a Proposed Estuary Recovery Plan Module. A notice of availability soliciting public comments on the Proposed Estuary Module was published in the
• Astoria, OR, January 29, 2008, at the Columbia River Maritime Museum, 6:30-8:30 p.m.
• Vancouver, WA, January 31, 2008, at the Water Resources Education Center, 6:30-8:30 p.m.
We received nine comment letters by mail, fax, or e-mail on the proposed recovery plan module from a variety of sources, including local, state, and Federal Government entities, nonprofit organizations, and interested individuals. A summary of the comments, responses, and changes made in the Estuary Module is available online at
We are committed to implementing the actions in the Estuary Module for which we have the authority, to working cooperatively on implementation of other actions, and to encouraging other Federal agencies to implement Estuary Module actions for which they have responsibility and authority. We will also encourage the states of Washington and Oregon to seek similar implementation commitments from state agencies and local governments.
We expect the Estuary Module to help us and other Federal agencies take a more consistent approach to future section 7 consultations and other ESA decisions. For example, the Estuary Module will provide greater biological context for the effects that a proposed action may have on a listed ESU or DPS. Science summarized in the Estuary Module will become a component of the “best available information” for section 7 consultations as well as for section 10 habitat conservation plans and other ESA decisions.
The purpose of the Estuary Module is to identify and prioritize management actions that, if implemented, would reduce the impacts of limiting factors, meaning the physical, biological, or chemical conditions that impede salmon and steelhead survival during their migration through and rearing in the estuary and plume ecosystems. The module first identifies and prioritizes limiting factors by summarizing the changes that have occurred in the estuary since European settlement and evaluating the potential of current physical, biological, or chemical conditions to affect salmon and steelhead. The module next describes the underlying causes of these limiting factors. These causes are referred to as threats and can be either human or environmental in origin. For example, the limiting factor of flow-related estuary habitat changes is caused by a combination of threats including water withdrawals, flow regulation, natural climate cycles, and human contributions to global climate change. The module prioritizes the threats based on the significance of the limiting factor to which they contribute and the relative contribution of each threat to one or more limiting factors. Finally, the module identifies management actions intended to reduce the threats and increase the survival of salmon and steelhead during estuarine rearing and migration. Costs are included for each of the actions.
The Estuary Module synthesizes diverse scientific sources and information provided by scientists who were consulted by the author. Three key documents informed the Estuary Module:
For the purposes of the Estuary Module, the estuary includes the entire continuum where tidal forces and river flows interact, regardless of the extent of saltwater intrusion (Fresh
During their life cycles, all listed salmon and steelhead in the Columbia River basin rely for some period on the Columbia River estuary. The Estuary Module is therefore intended to address all eight listed ESUs and all five listed DPSs.
Because the Estuary Module addresses only a portion of the species' life cycles and will be incorporated into locally developed recovery plans that NMFS will adopt as ESA recovery plans, it does not contain recovery goals and objectives or de-listing criteria. The domain-specific recovery plans into which this Estuary Module is incorporated will contain those elements.
The estuary and plume are considerably degraded from their historical condition. The Estuary Module identifies these changes, evaluates their potential effects on salmon and steelhead, and discusses their underlying causes (referred to as threats). The threats that have caused changes in the estuary can be broadly classified as habitat-related threats, threats related to the food web and species interactions, and other threats.
Flow alterations and diking and filling practices have affected salmon and steelhead in several ways. Access to and use of floodplain habitats by ocean-type ESUs (salmonids that typically rear for a shorter time in tributaries and a longer time in the estuary) have been severely compromised through alterations in the presence and availability of these important habitats. Shifts in timing, magnitude, and duration of flows have also changed erosion and accretion processes, resulting in changes to in-channel habitat availability and connectivity.
Elevated temperatures of water entering the estuary are also a threat to salmon and steelhead. Degradation of tributary riparian habitat by land-use practices, in addition to reservoir heating, has caused these increased temperatures. Toxic contaminants in the estuary and plume have also degraded water quality. Contaminants found in the estuary and plume include agricultural pesticides, fertilizers, and industrial chemicals. Contaminants can kill salmon and steelhead immediately, can alter their behavior in ways that increase their mortality (such as making them more susceptible to predation), and can accumulate over time and cause increased mortality (for example by suppressing the fishes' immune system).
The Estuary Module identifies 23 management actions to improve the survival of salmon and steelhead migrating through and rearing in the estuary and plume environments. Table 1 identifies these management actions and shows their relationship to threats.
Identifying management actions that could reduce threats to salmon and steelhead as they rear in or migrate through the estuary is an important step toward improving conditions for salmonids during a critical stage in their life cycles. However, actual implementation of management actions is constrained by a variety of factors, such as technical, economic, and private property considerations. In some cases, it will be impossible to realize an action's full potential because its implementation is constrained by past societal decisions that are functionally irreversible. An important assumption of the Estuary Module is that the implementation of each of the 23 management actions is constrained in some manner.
The Estuary Module makes another important assumption about implementation: although implementation of actions is constrained, even constrained implementation can make important contributions to the survival of salmonids in the estuary and plume.
Within the context of these two fundamental assumptions, the Estuary Module evaluates the costs and potential benefits of recovery actions.
To help characterize potential survival improvements, the Estuary Module uses a planning exercise that involves distributing a plausible survival improvement target of 20 percent across the actions to hypothesize the portion of that total survival improvement target that might result from each action. The primary purpose of the survival improvement target is to help compare the relative potential benefits of different management actions. The survival improvement target does not account for variation at the ESU, population, and subpopulation scales, and is not intended for use in life cycle modeling, except as a starting point in the absence of more rigorous data.
Each action in the Estuary Module is broken down into a number of specific projects or units, and per-unit costs for each project are identified. The costs reflect assumptions about the constraints to implementation and the degree to which it is possible to reduce those constraints.
Given those constraints, the Estuary Module estimates that the cost of implementing all 23 actions and associated research and monitoring over a 25-year time period is $592.15 million. Costs of tributary actions and the total estimated time and cost of recovery for each affected ESU or DPS will be provided in ESU- and DPS-level recovery plans.
Research, monitoring, and evaluation (RME) within an adaptive management framework is a critical element of recovery planning for ESA-listed species. Monitoring for the Estuary Module will build on ongoing efforts. In particular, the
The Estuary Module contributes to all the Columbia Basin salmon and steelhead recovery plans by analyzing limiting factors and threats related to survival of listed salmon and steelhead in the Columbia River estuary, identifying site-specific management actions related to those limiting factors and threats, and estimating the cost and time to implement those actions. NMFS will incorporate the Estuary Module by reference into all Columbia Basin salmon and steelhead recovery plans. We conclude that the Estuary Module provides information that helps to meet the requirements for recovery plans under ESA section 4(f), and adopt it as a component of Columbia Basin ESA recovery plans.
A complete list of all references cited herein is available upon request (
16 U.S.C. 1531
Office of the Assistant Secretary of Defense for Health Affairs, DoD.
Notice.
In compliance with Section 3506(c)(2)(A) of the
Consideration will be given to all comments received by April 15, 2011.
You may submit comments, identified by docket number and title, by any of the following methods:
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To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to Defense Health Information Management System (DHIMS),
In order to attain standardization, ensure a safe blood product, and comply with Federal law, all Military blood facilities are licensed and/or registered by the Food and Drug Administration (FDA) and must operate according to Title 21, Code of Federal Regulations, Part 211, Current Good Manufacturing Practices for Finished Pharmaceuticals, Part 610 series, Biologics, and Part 820 series, Medical Devices.
EBMS is a commercial-off-the-shelf (COTS) FDA 510K cleared Medical Device automated information system (AIS) software application that provides the Military Health System (MHS) with a comprehensive enterprise wide Blood Donor Management System (DBMS) and Blood Transfusion Management System (BTMS) with capabilities to manage blood donors (both in-house and at mobile collection sites), including Theater and VA; manage blood products both fresh and frozen throughout the collection, processing, testing, storing, and shipping procedures; interface with testing instrumentation for enterprise (Global) results management; shipping blood with in-transit visibility and shipping data transmit and receive; automate, enterprise-wide “lookback” for donors, patients, and products; automated, blood order issue, and transfusion records; manage enterprise inventory (Global). It has built-in safeguards to limit access and visibility of personal or sensitive information in accordance with the Privacy Act of 1974. The application will account for everyone that donates blood and receives blood transfusions in the MHS—Active Duty, Reserves, National Guard, government civilian, contractors and volunteers assigned or borrowed—this also includes non-appropriated fund employees and foreign nationals.
EBMS is a n-tier enterprise solution. The solution will use COTS products, installed at a Central Server location. EBMS which is delineated in several DoD issuances, including DoD Directive 6000.12, DoD Instruction 6480.4, and AR10-64, has applicability at the headquarters level allowing Armed Services Blood Program (ASBP) and Service Blood Program Office (SBPO) to use this product to conduct its own day-to-day blood inventory management. This comprehensive tool provides the capability to manage inventory, monitor adverse trends, review lookback case, manage donor deferrals and develop standard operation procedure. Deciding to implement EBMS within MHS, provides an enterprise solution for transfusion and donor processing that can be applied to enterprise-wide blood inventory, and traceability through out patient and donor life.
The information in EBMS is personal or sensitive; therefore, it contains built-in safeguards to limit access and visibility of this information. EBMS uses role-based security so a user sees only the information for which permission has been granted. It uses state-of-the-market 128-bit encryption security for our transactions. It is DITSCAP certified having been subjected to and passed thorough security testing and evaluation by independent parties. It meets safeguards specified by the Privacy Act of 1974 in that it maintains a published DoD Privacy Impact Assessment and System of Record covering Active Duty Military, Reserve, National Guard, and government civilian employees, to include non-appropriated fund employees and foreign nationals, DoD contractors, and volunteers. EBMS is hosted in a secure facility managed by the Defense Information Systems Agency.
Department of Defense.
Notice.
Under the provision of the Federal Advisory Committee Act of 1972 (5 U.S.C., appendix as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b as amended), and
July 14-15, 2011, from 1 p.m.-5 p.m. on July 14, 2011, and 10 a.m.-1 p.m. on July 15, 2011.
4040 N. Fairfax Drive, Suite 250, Arlington, VA 22203.
Inger Pettygrove at the DoD Office of the Actuary, 4040 N. Fairfax Drive, Suite 308, Arlington, VA 22203.
Department of Defense.
Notice.
Pursuant to Section 10(a), Public Law 92-463, as amended, notice is hereby given of a forthcoming meeting of the Defense Department Advisory Committee on Women in the Services (DACOWITS). The meeting is open to the public, subject to the availability of space.
March 4, 2011, from 8 a.m.-4 p.m.
Residence Inn Marriott, 550 Army Navy Dr, Arlington, VA 22202.
MSgt Robert Bowling, USAF, or DACOWITS, 4000 Defense Pentagon, Room 2C548A, Washington, DC 20301-4000, E-mail:
Department of Defense.
Notice of closed meetings.
Pursuant to the provisions of section 10 of Public Law 92-463, the Federal Advisory Committee Act, notice is hereby given that closed meetings of the Department of Defense Wage Committee will be held on Tuesday, March 8, 2011, and Tuesday, March 22, 2011.
Tuesday, March 8, 2011, and Tuesday, March 22, 2011, at 10 a.m.
1400 Key Boulevard, Level A, Room A101, Rosslyn, Virginia 22209.
Additional information concerning the meetings may be obtained by writing to the Chairman, Department of Defense Wage Committee, 4000 Defense Pentagon, Washington, DC 20301-4000.
Under the provisions of section 10(d) of Public Law 92-463, the Department of Defense has determined that the meetings meet the criteria to close meetings to the public because the matters to be considered are related to internal rules and practices of the Department of Defense and the detailed wage data to be considered were obtained from officials of private establishments with a guarantee that the data will be held in confidence.
However, members of the public who may wish to do so are invited to submit material in writing to the chairman concerning matters believed to be deserving of the Committee's attention.
Department of Defense.
Notice.
Under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.150, the Department of Defense announces that the following federal advisory committee meeting of the DoD Medicare-Eligible Retiree Health Care Board of Actuaries will take place:
Friday, July 29, 2011, from 1 p.m.-5 p.m.
4040 N. Fairfax Drive, Suite 250, Arlington, VA 22203.
Margot Kaplan at the DoD Office of the Actuary, 4040 N. Fairfax Drive, Suite 308, Arlington, VA 22203.
Defense Information Systems Agency, DoD.
Notice to delete three systems of records.
The Defense Information Systems Agency is deleting three systems of records notices in its existing inventory of record systems subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended.
This proposed action will be effective without further notice on March 16, 2011 unless comments are received which result in a contrary determination.
You may submit comments, identified by dock number and/RIN number and title, by any of the following methods:
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Ms. Jeanette M. Weathers-Jenkins at (703) 681-2103, or Defense Information Systems Agency, 5600 Columbia Pike, Room 933-I, Falls Church, VA 22041-2705.
The Defense Information Systems Agency systems of records notices subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended, have been published in the
The Defense Information Systems Agency proposes to delete three systems of records notices from its inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended. The proposed deletion is not within the purview of subsection (r) of the Privacy Act of 1974, (5 U.S.C. 552a), as amended, which requires the submission of a new or altered system report.
Personnel Security Investigative Dossier File (PSIDF) (August 23, 1995, 60 FR 43777).
The personnel security investigative Dossier (PSIDF) files are not stored at DISA. PSIDF are stored at military central adjudication facilities, U.S. Office of Personnel Management, Defense Intelligence Agency, Washington headquarters adjudication facility, Defense Security Service, and Defense Industrial Security Clearance Office.
Identification Badge System (February 22, 1993, 58 FR 10562).
The identification badge system does not contain Personally Identifiable Information that is directly solicited, collected, and under the control of a Federal agency or component from which there is specific retrieval of information using a personal identifier (
Vehicle and Parking Registration Card (February 22, 1993, 58 FR 10562).
The vehicle and parking registration card function is now managed by Department of Army, Fort Meade.
Interface Control Working Group (ICWG) meeting for document ICD-GPS-870.
Meeting Notice.
This notice informs the public that the Global Positioning Systems Directorate will be hosting an Interface Control Working Group (ICWG) meeting for document ICD-GPS-870, Navstar Next Generation GPS Operational Control Segment (OCX) to User Support Community Interfaces. This document captures the same interface as ICD-GPS-240 (Navstar GPS Control Segment to User Support Community Interfaces), but for the OCX era. Therefore, the meeting will only address the OCX data formats definition and the OCX information assurance requirements for data integrity. The ICWG is open to the general public. For those who would like to attend and participate in this ICWG meeting, you are requested to register to attend the meeting no later than 26 March 2011. Please send the registration to
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice.
In a November 16, 2010,
USACE, in consultation with other federal agencies, Native American tribes, state agencies, local governments
USACE will be accepting public comments on the scope of GLMRIS until March 31, 2011. Please refer to the “
For further information and/or questions about GLMRIS, please contact USACE, Chicago District, Project Manager, Mr. David Wethington,
For media inquiries, please contact the USACE, Chicago District, Public Affairs Officer, Ms. Lynne Whelan,
1.
USACE will conduct a comprehensive analysis of ANS controls and will analyze the effects an ANS control or combination of ANS controls may have on current uses of: (1) The Chicago Area Waterway System (CAWS), the only known continuous aquatic pathway between the Great Lakes and Mississippi River basins; and (2) other aquatic pathways between these basins. For the CAWS, current waterway uses include, but are not limited to: flood risk management; commercial and recreational navigation; recreation; water supply; hydropower; and conveyance of effluent from wastewater treatment plants and other industries. Additionally, this study will identify mitigation measures or alternative facilities necessary to offset and address impacted waterway uses and current significant natural resources.
USACE will conduct GLMRIS in accordance with NEPA and with the
2.
All forms of comments received during the scoping period will be weighted equally. Using input obtained during the scoping period, USACE will refine the scope of GLMRIS to focus on significant issues, as well as eliminate issues that are not significant from further detailed study.
Comments may be submitted in the following ways:
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At the scoping meetings, USACE will provide informational materials about the study's authorities and USACE study process. The meetings will begin with a presentation regarding the study followed by an oral comment period. During each meeting, USACE will also collect written comments on comment cards and computer terminals.
Due to weather conditions, USACE rescheduled the February 3, 2011 public scoping meeting in Ann Arbor, MI. The purpose of this notice is to announce the meeting information for (i) the rescheduled public scoping meeting in Ann Arbor, MI and (ii) the public scoping meetings scheduled in Milwaukee, WI and New Orleans, LA. USACE will host NEPA public scoping meetings from 2 p.m. to 8 p.m. at the following locations:
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3.
Comments received during the scoping period will be posted on the GLMRIS project website and will become a part of the EIS. You may indicate that you do not wish to have your name or other personal information made available on the website. However, USACE cannot guarantee that information withheld from the website will be maintained as confidential. Requests for disclosure of collected information will be handled through the Freedom of Information Act. Comments and information, including the identity of the submitter, may be disclosed, reproduced, and distributed. Submissions should not include any information that the submitter seeks to preserve as confidential.
If you require assistance under the Americans with Disabilities Act, please contact Ms. Lynne Whelan via e-mail at
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4.
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Department of Education.
Comment request.
The Department of Education (the Department), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the reporting burden on the public and helps the public understand the Department's information collection requirements and provide the requested data in the desired format. The Director, Information Collection Clearance Division, Regulatory Information Management Services, Office of Management, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before April 15, 2011.
Comments regarding burden and/or the collection activity requirements should be electronically mailed to
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that Federal agencies provide interested parties an early opportunity to comment on information collection requests. The Director, Information Collection Clearance Division, Regulatory Information Management Services, Office of Management, publishes this notice containing proposed information collection requests at the beginning of the Departmental review of the information collection. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology.
Copies of the proposed information collection request may be accessed from
Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Department of Education.
Comment request.
The Department of Education (the Department), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the reporting burden on the public and helps the public understand the Department's information collection requirements and provide the requested data in the desired format. The Director, Information Collection Clearance Division, Regulatory Information Management Services, Office of Management, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before April 15, 2011.
Comments regarding burden and/or the collection activity requirements should be electronically mailed to
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that Federal agencies provide interested parties an early opportunity to comment on information collection requests. The Director, Information Collection Clearance Division, Regulatory Information Management Services, Office of Management, publishes this
Copies of the proposed information collection request may be accessed from
Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Department of Education.
Comment request.
The Department of Education (the Department), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the reporting burden on the public and helps the public understand the Department's information collection requirements and provide the requested data in the desired format. The Director, Information Collection Clearance Division, Regulatory Information Management Services, Office of Management, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before April 15, 2011.
Comments regarding burden and/or the collection activity requirements should be electronically mailed to
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that Federal agencies provide interested parties an early opportunity to comment on information collection requests. The Director, Information Collection Clearance Division, Regulatory Information Management Services, Office of Management, publishes this notice containing proposed information collection requests at the beginning of the Departmental review of the information collection. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology.
Copies of the proposed information collection request may be accessed from
Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Department of Education.
Comment request.
The Department of Education (the Department), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the reporting burden on the public and helps the public understand the Department's information collection requirements and provide the requested data in the desired format. The Director, Information Collection Clearance Division, Regulatory Information Management Services, Office of Management, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before April 15, 2011.
Comments regarding burden and/or the collection activity requirements should be electronically mailed to
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that Federal agencies provide interested parties an early opportunity to comment on information collection requests. The Director, Information Collection Clearance Division, Regulatory Information Management Services, Office of Management, publishes this notice containing proposed information collection requests at the beginning of the Departmental review of the information collection. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology.
Copies of the proposed information collection request may be accessed from
Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Department of Energy; Office of Science.
Notice of open meeting.
This notice announces a meeting of the Biological and Environmental Research Advisory Committee (BERAC). The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of these meetings be announced in the
Wednesday, March 9, 2011, 9 a.m. to 5 p.m. and Thursday, March 10, 2011, 9 a.m. to 12 p.m.
Omni Shoreham Hotel, 2500 Calvert Street, NW., Washington, DC 20008.
Dr. David Thomassen, Designated Federal Officer, U.S. Department of Energy, Office of Biological and Environmental Research, SC-23/Germantown Building, 1000 Independence Avenue, SW., Washington, DC 20585-1290; phone: (301) 903-9817; fax (301) 903-5051 or e-mail:
• Report from the Office of Biological and Environmental Research
• News from the Biological Systems Science and Climate and Environmental Sciences Divisions
• Discussions on the Climate and Environmental Sciences Division Committee of Visitors Response and the Biological and Environmental Research Long-Term Vision Response
• Joint Genome Institute Update and ARM review outbrief
• 2012 Budget briefing
• New Business
• Public Comment
Department of Energy, Office of Science.
Notice of open meeting.
This notice announces a meeting of the DOE/NSF High Energy Physics Advisory Panel (HEPAP). Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of these meetings be announced in the
Thursday, March 17, 2011, 10 a.m.-6 p.m., and Friday, March 18, 2011, 8:30 a.m.-2 p.m.
Hotel Palomar, 2121 P Street, NW., Washington, DC 20037.
John Kogut, Executive Secretary; High Energy Physics Advisory Panel; U.S. Department of Energy; SC-25/Germantown Building, 1000 Independence Avenue, SW., Washington, DC 20585-1290; Telephone: (301) 903-1298 or email:
• Discussion of Department of Energy High Energy Physics Program
• Discussion of National Science Foundation Elementary Particle Physics Program
• Reports on and Discussions of Topics of General Interest in High Energy Physics
• Public Comment (10-minute rule)
Department of Energy, Office of Science.
Notice of open meeting.
This notice announces a meeting of the Basic Energy Sciences Advisory Committee (BESAC). Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of these meetings be announced in the
Thursday, March 17, 2011; 10 a.m.-5 p.m. and Friday, March 18, 2011; 9 a.m.-12 p.m.
Bethesda North Hotel and Conference Center, 5701 Marinelli Road, Bethesda, Maryland 20852.
Katie Perine; Office of Basic Energy Sciences; U.S. Department of Energy; Germantown Building, 1000 Independence Avenue, SW., Washington, DC 20585; Telephone: (301) 903-6529.
• News from Office of Science/DOE.
• News from the Office of Basic Energy Sciences.
• Discussion on the FY 2012 Budget.
• New charge to BESAC—Mesoscale Science.
• Follow-up on the Science for Energy Technologies Report.
Department of Energy (DOE).
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Portsmouth. The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of this meeting be announced in the
Thursday, March 3, 2011, 6 p.m.-8 p.m.
Ohio State University, Endeavor Center, 1862 Shyville Road, Piketon, Ohio 45661.
Joel Bradburne, Deputy Designated Federal Officer, Department of Energy, Portsmouth/Paducah Project Office, Post Office Box 700, Piketon, Ohio 45661, (740) 897-3822; e-mail:
• Call to Order, Introductions, Review of Agenda.
• Approval of January Minutes.
• Deputy Designated Federal Officer's Comments.
• Federal Coordinator's Comments.
• Liaisons' Comments.
• Plant Tour Safety Procedures.
• Administrative Issues:
○ Subcommittee Updates.
○ Discussion on Top 3 Issues, Accomplishments, and Major Board Activity.
○ Discussion on Nevada Site-Specific Advisory Board Recommendation: Using Rail Transport for Moving Waste.
• Public Comments.
• Final Comments.
• Adjourn.
Department of Energy, Office of Science.
Notice of open meeting.
This notice announces a meeting of the DOE/NSF Nuclear Science Advisory Committee (NSAC). Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of this meeting be announced in the
Wednesday, March 2, 2011, 9 a.m.-5 p.m.
Hilton Washington DC/Rockville Hotel & Executive Meeting Center, 1750 Rockville Pike, Rockville, Maryland 20852, (301) 468-1100.
Brenda L. May, U.S. Department of Energy; SC-26/Germantown Building, 1000 Independence Avenue, SW., Washington, DC 20585-1290; telephone: (301) 903-0536 or e-mail:
• Perspectives from Department of Energy and National Science Foundation.
• Update from the Department of Energy and National Science Foundation's Nuclear Physics Office.
• Status of the Isotopes Program.
• Update on the Activities of the Neutron Charge Subcommittee.
• Public Comment (10-minute rule).
Western Area Power Administration, DOE.
Notice of proposed base charge and rates.
The Western Area Power Administration (Western) is proposing an adjustment to the Boulder Canyon Project (BCP) electric service base charge and rates. The current base charge and rates expire September 30, 2011, under Rate Schedule BCP-F8. The current base charge is not sufficient to cover all annual costs including operation, maintenance, replacements, and interest expense, and to repay investment obligations within the required period. The proposed base charge will provide sufficient revenue to cover all annual costs and to repay investment obligations within the allowable period. A detailed rate package that identifies the reasons for the base charge and rates adjustment will be available in March 2011. The proposed base charge and rates are scheduled to become effective on October 1, 2011, and will remain in effect through September 30, 2012. This
The consultation and comment period will begin today and will end May 16, 2011. Western will present a detailed explanation of the proposed base charge and rates at a public information forum on April 6, 2011, beginning at 10:30 a.m. MST, in Phoenix, Arizona. Western will accept oral and written comments at a public comment forum on April 27, 2011, beginning at 10:30 a.m. MST, at the same location. Western will accept written comments any time during the consultation and comment period.
The public information forum and public comment forum will be held at the Desert Southwest Customer Service Regional Office, located at 615 South 43rd Avenue, Phoenix, Arizona, on the dates cited above. Written comments should be sent to Darrick Moe, Regional Manager, Desert Southwest Customer Service Region, Western Area Power Administration, P.O. Box 6457, Phoenix, AZ 85005-6457, e-mail
As access to Western facilities is controlled, any U.S. citizen wishing to attend any meeting held at Western must present an official form of picture identification, such as a U.S. driver's license, U.S. passport, U.S. Government ID, or U.S. Military ID, at the time of the meeting. Foreign nationals should contact Western 30 days in advance of the meeting to obtain the necessary form for admittance to Western.
Mr. Jack Murray, Rates Manager, Desert Southwest Customer Service Region, Western Area Power Administration, P.O. Box 6457, Phoenix, AZ 85005-6457, (602) 605-2442, e-mail
The proposed base charge and rates for BCP electric service are designed to recover an annual revenue requirement that includes the investment repayment, interest, operation and maintenance, replacements, payments to states, visitor services, and uprating payments. The total costs are offset by the projected revenue from water sales, visitor center, water pumping energy sales, facilities use charges, regulation, reactive supply, spinning reserve services, miscellaneous leases, and late fees. The annual revenue requirement is the base charge for electric service and is divided equally between capacity dollars and energy dollars. Annual energy dollars are divided by annual energy sales, and annual capacity dollars are divided by annual capacity sales to determine the proposed energy rate and the proposed capacity rate.
Rate Schedule BCP-F8, Rate Order No. WAPA-150, was approved on an interim basis by the Deputy Secretary of Energy on September 23, 2010 for a five-year period beginning on October 1, 2010, ending September 30, 2015,
The proposed rates for BCP electric service will result in an overall composite rate increase of approximately 12 percent. The following Table 1 compares the existing and proposed base charge and rates. The Proposed Base Charge and Rates effective October 1, 2011, are preliminary and are subject to change upon publication of final formula rates.
The increase in the proposed base charge and rates is due to increases in the annual operation and maintenance costs, visitor center costs, and the uprating program principal payments. Since there is no projected year-end carryover from FY 2011, the result is an overall increase in the base charge for FY 2012. Another factor contributing to the increase in the energy rate is the decrease in energy sales associated with continued poor hydrology in the region
Since the proposed rates constitute a major rate adjustment as defined by 10 CFR part 903, Western will hold both a public information forum and a public comment forum. After review of public comments, Western will take further action on the Proposed Base Charge and Rates consistent with 10 CFR parts 903 and 904.
Western is establishing an electric service base charge and rates for BCP under the Department of Energy Organization Act (42 U.S.C. 7152); the Reclamation Act of 1902 (ch. 1093, 32 Stat. 388), as amended and supplemented by subsequent laws, particularly section 9(c) of the Reclamation Project Act of 1939 (43 U.S.C. 485h(c)), and other acts that specifically apply to the project involved.
By Delegation Order No. 00-037.00, effective December 6, 2001, the Secretary of Energy delegated: (1) The authority to develop power and transmission rates to Western's Administrator; (2) the authority to confirm, approve, and place such rates into effect on an interim basis to the Deputy Secretary of Energy; and (3) the authority to confirm, approve, and place into effect on a final basis, to remand or to disapprove such rates to FERC. Existing Department of Energy (DOE) procedures for public participation in power rate adjustments (10 CFR part 903) were published on September 18, 1985.
All brochures, studies, comments, letters, memorandums, or other documents that Western initiates or uses to develop the proposed rates are available for inspection and copying at the Desert Southwest Customer Service Regional Office, Western Area Power Administration, 615 South 43rd Avenue, Phoenix, Arizona. Many of these documents and supporting information are also available on Western's Web site at
In compliance with the National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321-4347); Council on Environmental Quality Regulations (40 CFR 1500-1508); and DOE NEPA Regulations (10 CFR 1021), Western has determined this action is categorically excluded from preparing an environmental assessment or an environmental impact statement.
Western has an exemption from centralized regulatory review under Executive Order 12866. Accordingly, no clearance of this notice by the Office of Management and Budget is required.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA)(44 U.S.C. 3501
Additional comments must be submitted on or before March 16, 2011.
Submit your comments, referencing Docket ID No. EPA-HQ-OW-2003-0013, to (1) EPA online using
Karen Edwards, Water Security Division, Office of Ground Water and Drinking Water, Mailcode: 4608T, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: 202-564-3797; fax number: 202-566-0055; e-mail address:
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On August 25, 2010 (75 FR 52326), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments during the comment period. Any additional comments on this ICR should be submitted to EPA and OMB within 30 days of this notice.
EPA has established a public docket for this ICR under Docket ID No. EPA-HQ-OW-2003-0013, which is available for online viewing at
Use EPA's electronic docket and comment system at
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before March 16, 2011.
Submit your comments, referencing docket ID number EPA-HQ-OECA-2010-0352 to (1) EPA online using
Learia Williams, Office of Compliance, Mail Code 2223A, Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460;
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On June 2, 2010 (75 FR 30813), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments. Any additional comments on this ICR should be submitted to EPA and OMB within 30 days of this notice.
EPA has established a public docket for this ICR under docket ID number EPA-HQ-OECA-2010-0352, which is available for public viewing online at
Use EPA's electronic docket and comment system at
The previous ICR covered the initial phase of standard implementation which occurred over a three-year period. Hence, the average number of respondents during the initial phase is less than the number of respondents when the standard is fully implemented. This ICR shows the labor hour and cost burden after full implementation.
The increase in cost to Respondents and the Agency is due to full implementation of the rule and use of current labor rates.
Environmental Protection Agency.
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Comments must be submitted on or before April 15, 2011.
Submit your comments, identified by Docket ID No. EPA-HQ-SFUND-2004-0006, by one of the following methods:
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Sicy Jacob, Office of Emergency Management, 5104A, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (202) 564-8019; fax number: (202) 564-2625; e-mail address:
EPA has established a public docket for this ICR under Docket ID No. EPA-HQ-2004-0006, which is available for online viewing at
Use
Pursuant to section 3506(c)(2)(A) of the PRA, EPA specifically solicits comments and information to enable it to:
(i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(ii) evaluate the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(iii) enhance the quality, utility, and clarity of the information to be collected; and
(iv) minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology,
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible and provide specific examples.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Offer alternative ways to improve the collection activity.
6. Make sure to submit your comments by the deadline identified under
7. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and Federal Register citation.
Docket ID No. EPA-HQ-2004-0006.
The average burden for state and local governments to respond to requests for MSDSs or Tier II information under 40 CFR 370.30 is estimated to be 0.17 hours per request. The average burden for state and local governments for managing and maintaining the reports is estimated to be 32.25 hours. The burden hours indicated here are from the current approved ICR. EPA may revise the burden before submitting this ICR package to OMB.
Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology
The ICR provides a detailed explanation of the Agency's estimate, which is only briefly summarized here:
As stated earlier in this document, EPA may revise the burden based on current information on the number of respondents before submitting the ICR package to OMB for approval. The cost will be adjusted based on current wage rates.
EPA will consider the comments received and amend the ICR as appropriate. The final ICR package will then be submitted to OMB for review and approval pursuant to 5 CFR 1320.12. At that time, EPA will issue another Federal Register notice pursuant to 5 CFR 1320.5(a)(1)(iv) to announce the submission of the ICR to OMB and the opportunity to submit additional comments to OMB. If you have any questions about this ICR or the approval process, please contact the technical person listed under
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before March 16, 2011.
Submit your comments, referencing docket ID number EPA-HQ-OECA-2010-0357, to (1) EPA online using
Learia Williams, Office of Compliance, Mail Code 2223A, Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; telephone number: (202) 564-4113; fax number: (202) 564-0050, e-mail address:
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On June 2, 2010 EPA published a notice in the
EPA has established a public docket for this ICR under docket ID number EPA-HQ-OECA-2010-0357, which is available for public viewing online at
Use EPA's electronic docket and comment system at
Owners or operators of the affected facilities described must make one-time-only notifications. Owners or operators are also required to maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. Monitoring requirements specific to Equipment Leaks of VOC in Petroleum Refineries provide information on which components are leaking VOCs. NSPS Subpart GGG references the compliance requirements of NSPS subpart VV; and NSPS subpart GGGa references the compliance requirements of NSPS subpart VVa. Periodically, owners or operators are required to record information identifying leaking equipment, repair methods used to stop the leaks, and dates of repair. The time period for this recordkeeping varies and depends on equipment type and leak history. Semiannual reports are required to measure compliance with the standards of NSPS Subparts VV and VVa, as referenced by NSPS subparts GGG and GGGa. These notifications, reports, and records are essential in determining compliance and in general, are required of all sources subject to NSPS. Any owner or operator subject to the provisions of this part shall maintain a file of these measurements, and retain the file for at least two years following the date of such measurements, maintenance reports, and records.
The increase in labor hour cost is due to a recalculation of burden using current labor rates and the correction of a mathematical error.
There are no annual capital and O&M costs to the regulated entities. Capital and O&M costs are not applicable because this is a leak detection and repair program with no continuous monitoring equipment.
Environmental Protection Agency (EPA).
Notice.
The EPA Science Advisory Board (SAB) Staff Office is requesting public nominations of experts to serve on the SAB Environmental Justice Technical (EJT) Panel.
Nominations should be submitted by March 7, 2011 per instructions below.
Any member of the public wishing further information regarding this Notice and Request for Nominations may contact Dr. Suhair Shallal, Designated Federal Officer (DFO), SAB Staff Office, by telephone/voice mail at (202) 564-2057; by fax at (202) 565-2098 or via e-mail at
In July 2010, the Environmental Protection Agency (EPA) released the
EPA's SAB Staff Office requests: contact information about the person making the nomination; contact information about the nominee; the disciplinary and specific areas of expertise of the nominee; the nominee's curriculum vita; sources of recent grant and/or contract support; and a biographical sketch of the nominee indicating current position, educational background, research activities, and recent service on other national advisory committees or national professional organizations.
Persons having questions about the nomination procedures, or who are unable to submit nominations through the SAB Web site, should contact Dr. Suhair Shallal, DFO, as indicated above in this notice. Nominations should be submitted in time to arrive no later than March 7, 2011. EPA values and welcomes diversity. In an effort to obtain nominations of diverse candidates, EPA encourages nominations of women and men of all racial and ethnic groups.
The EPA SAB Staff Office will acknowledge receipt of nominations. The names and biosketches of qualified nominees identified by respondents to this Federal Register notice, and additional experts identified by the SAB Staff, will be posted in a List of Candidates on the SAB Web site at
For the EPA SAB Staff Office, a balanced subcommittee or review panel includes candidates who possess the necessary domains of knowledge, the relevant scientific perspectives (which, among other factors, can be influenced by work history and affiliation), and the collective breadth of experience to adequately address the charge. In the SAB EJT Panel, the SAB Staff Office will consider public comments on the List of candidates, information provided by the candidates themselves, and background information independently gathered by the SAB Staff Office. Selection criteria to be used for Panel membership include: (a) Scientific and/or technical expertise, knowledge, and experience (primary factors); (b) availability and willingness to serve; (c) absence of financial conflicts of interest; (d) absence of an appearance of a lack of impartiality; and (e) skills working in committees, subcommittees and advisory panels; and, for the Panel as a whole, (f) diversity of expertise and viewpoints.
The SAB Staff Office's evaluation of an absence of financial conflicts of interest will include a review of the “Confidential Financial Disclosure Form for Special Government Employees Serving on Federal Advisory Committees at the U.S. Environmental Protection Agency” (EPA Form 3110-48). This confidential form allows Government officials to determine whether there is a statutory conflict between that person's public responsibilities (which includes membership on an EPA Federal advisory committee) and private interests and activities, or the appearance of a lack of impartiality, as defined by Federal regulation. The form may be viewed and downloaded from the following URL address at
The approved policy under which the EPA SAB Office selects subcommittees and review panels is described in the following document:
Federal Election Commission.
Wednesday, February 16, 2011, at 10 a.m.
999 E Street, NW., Washington, DC.
This meeting will be closed to the public.
Compliance matters pursuant to 2 U.S.C. 437g.
Audits conducted pursuant to 2 U.S.C. 437g, 438(b), and Title 26, U.S.C.
Matters concerning participation in civil actions or proceedings or arbitration.
Internal personnel rules and procedures or matters affecting a particular employee.
Judith Ingram, Press Officer, Telephone: (202) 694-1220.
Federal Election Commission.
Thursday, February 17, 2011 at 10 a.m.
999 E Street, NW., Washington, DC (Ninth Floor).
This meeting will be open to the public.
Correction and Approval of the Minutes for the Meeting of February 3, 2011
Draft AO 2011-01: Robin Carnahan for Senate by Mark Elias, Jonathan S. Berkon, and Ezra W. Reese
Draft AO 2011-02: Senator Scott Brown and Brown for U.S. Senate Committee by Daniel Winslow
Kucinich for President, Inc.—Statement of Reasons—Repayment Determination upon Administrative Review
Audit Division Recommendation Memorandum on the Kansas Republican Party
Management and Administrative Matters.
Individuals who plan to attend and require special assistance, such as sign language interpretation or other reasonable accommodations, should contact Shawn Woodhead Werth, Commission Secretary and Clerk, at (202) 694-1040, at least 72 hours prior to the hearing date.
Judith Ingram, Press Officer. Telephone: (202) 694-1220.
Federal Election Commission.
Notice of adjustments to contribution and expenditure limits and lobbyist bundling disclosure threshold.
As mandated by provisions of the Federal Election Campaign Act of 1971, as amended (“FECA” or “the Act”), the Federal Election Commission (“FEC” or “the Commission”) is adjusting certain contribution and expenditure limits and the lobbyist bundling disclosure threshold set forth in the Act, to index the amounts for inflation. Additional details appear in the supplemental information that follows.
Mr. Greg J. Scott, Information Division, 999 E Street, NW., Washington, DC 20463; (202) 694-1100 or (800) 424-9530.
Under the Federal Election Campaign Act of 1971, 2 U.S.C. 431
Under 2 U.S.C. 441a(c), the Commission must adjust the expenditure limits established by 2 U.S.C. 441a(d) (the limitations on expenditures by national party committees, state party committees, or their subordinate committees in connection with the general election campaign of candidates for Federal office) annually to account for inflation. This expenditure limit is increased by the percent difference between the price index, as certified to the Commission by the Secretary of Labor, for the 12 months preceding the beginning of the calendar year and the price index for the base period (calendar year 1974).
Both the national and state party committees have a coordinated expenditure limit for each general election held to fill a seat in the House of Representatives in states with more than one congressional district. This limit also applies to those states that elect individuals to the office of Delegate or Resident Commissioner.
Both the national and state party committees have a coordinated expenditure limit for a general election held to fill a seat in the Senate or in the House of Representatives in states with only one congressional district. The formula used to calculate this expenditure limit considers not only the price index but also the voting age population (“VAP”) of the state. The VAP of each state is published annually in the
BCRA amended the Act to extend inflation indexing to: (1) The limitations on contributions made by persons under 2 U.S.C. 441a(a)(1)(A) (contributions to candidates) and 441a(a)(1)(B) (contributions to national party committees); (2) the biennial aggregate contribution limits applicable to individuals under 2 U.S.C. 441a(a)(3); and (3) the limitation on contributions made to U.S. Senate candidates by certain political party committees at 2 U.S.C. 441a(h).
The increased limit at 2 U.S.C. 441a(a)(1)(A) is to be in effect for the two-year period beginning on the first day following the date of the general election in the preceding year and ending on the date of the next regularly scheduled election. Thus, the $2,500 figure above is in effect from November 3, 2010, to November 6, 2012. The limits under 2 U.S.C. 441a(a)(1)(B), 441a(a)(3)(A) and (B), and 441a(h), shall be in effect beginning January 1st of the odd-numbered year and ending on December 31st of the next even-numbered year. Thus the new contribution limits under 2 U.S.C. 441a(a)(1)(B), 441a(a)(3)(A) and (B), and 441a(h) are in effect from January 1, 2011, to December 31, 2012.
The Act, as amended by HLOGA, requires certain political committees to disclose contributions bundled by lobbyists/registrants and lobbyist/registrant political action committees once the contributions exceed a specified threshold amount. The Commission must adjust this threshold amount annually to account for inflation. The disclosure threshold is increased by multiplying the $15,000 statutory disclosure threshold by 1.08163, the difference between the price index, as certified to the Commission by the Secretary of Labor, for the 12 months preceding the beginning of the calendar year and the price index for the base period (calendar year 2006). The resulting amount is rounded to the nearest multiple of $100.
On behalf of the Commission.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than March 2, 2011.
A. Federal Reserve Bank of Kansas City (Dennis Denney, Assistant Vice President) 1 Memorial Drive, Kansas City, Missouri 64198-0001:
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Section 30.18 of the Department of Health and Human Services' claims collection regulations (45 CFR part 30) provides that the Secretary shall charge an annual rate of interest, which is determined and fixed by the Secretary of the Treasury after considering private consumer rates of interest on the date that the Department of Health and Human Services becomes entitled to recovery. The rate cannot be lower than the Department of Treasury's current value of funds rate or the applicable rate determined from the “Schedule of Certified Interest Rates with Range of Maturities” unless the Secretary waives interest in whole or part, or a different rate is prescribed by statute, contract, or repayment agreement. The Secretary of the Treasury may revise this rate quarterly. The Department of Health and Human Services publishes this rate in the
The current rate of 11%, as fixed by the Secretary of the Treasury, is certified for the quarter ended December 31, 2010. This interest rate is effective until the Secretary of the Treasury notifies the Department of Health and Human Services of any change.
National Institute of Environmental Health Sciences (NIEHS), National Institutes of Health.
Meeting announcement and request for comments.
Pursuant to Public Law 92-463, notice is hereby given of a meeting of the NTP Board of Scientific Counselors (BSC). The BSC is a federally chartered, external advisory group composed of scientists from the
The BSC meeting will be held on April 13, 2011. The deadline for submission of written comments is March 30, 2011, and for pre-registration to attend the meeting, including registering to present oral comments, is April 6, 2011. Persons needing interpreting services in order to attend should contact 301-402-8180 (voice) or 301-435-1908 (TTY). For other accommodations while on the NIEHS campus, contact 919-541-2475 or e-mail
The BSC meeting will be held in the Rodbell Auditorium, Rall Building at the NIEHS, 111 T.W. Alexander Drive, Research Triangle Park, NC 27709. Public comments on all agenda topics and any other correspondence should be submitted to Dr. Lori White, Designated Federal Officer for the BSC, NTP Office of Liaison, Policy and Review, NIEHS, P.O. Box 12233, K2-03, Research Triangle Park, NC 27709; telephone: 919-541-9834; fax: 919-541-0295;
Dr. Lori White (telephone: 919-541-9834 or
• Weight of Evidence Criteria
The updated agenda, roster of BSC members, background materials, public comments, and any additional information, when available, will be posted on the BSC meeting website (
The meeting is scheduled for April 13, 2011, beginning at 8 a.m. (Eastern Standard Time) and continuing to adjournment. This meeting is open to the public with attendance limited only by the space available. Individuals who plan to attend are encouraged to register online at the BSC meeting Web site (
Written comments submitted in response to this notice should be received by March 30, 2011. Comments will be posted on the BSC meeting Web site and persons submitting them will be identified by their name and affiliation and/or sponsoring organization, if applicable. Persons submitting written comments should include their name, affiliation (if applicable), phone, email, and sponsoring organization (if any) with the document.
Time will be allotted during the meeting for the public to present oral comments to the BSC on the agenda topics. In addition to in-person oral comments at the meeting at the NIEHS, public comments can be presented by teleconference line. There will be 50 lines for this call; availability will be on a first-come, first-served basis. The available lines will be open from 8 AM until adjournment, although public comments will be received only during the formal public comment periods, which are indicated on the preliminary agenda. Each organization is allowed one time slot per agenda topic. At least 7 minutes will be allotted to each speaker, and if time permits, may be extended to 10 minutes at the discretion of the BSC chair. Persons wishing to present oral comments are encouraged to pre-register on the NTP meeting website, indicate whether they will present comments in-person or via the teleconference line, and list the topic(s) on which they plan to comment. The access number for the teleconference line will be provided to registrants by email prior to the meeting. Registration for oral comments will also be available on both meeting days, although time allowed for presentation by these registrants may be less than that for pre-registered speakers and will be determined by the number of persons who register at the meeting.
Persons registering to make oral comments are asked to send a copy of their statement or PowerPoint slides to the Designated Federal Officer for the BSC (
The BSC is a technical advisory body comprised of scientists from the public and private sectors that provides primary scientific oversight to the NTP. Specifically, the BSC advises the NTP on matters of scientific program content, both present and future, and conducts periodic review of the program for the purpose of determining and advising on the scientific merit of its activities and their overall scientific quality. Its members are selected from recognized authorities knowledgeable in fields such as toxicology, pharmacology, pathology, biochemistry, epidemiology, risk assessment, carcinogenesis, mutagenesis, molecular biology, behavioral toxicology, neurotoxicology, immunotoxicology, reproductive toxicology or teratology, and biostatistics. Members serve overlapping terms of up to four years. The BSC usually meets biannually.
The
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Coast Guard, DHS.
Notice of meeting.
The Commercial Fishing Safety Advisory Committee (CFSAC) will meet in Portsmouth, Virginia to discuss various issues relating to safety in the commercial fishing industry. This meeting will be open to the public.
The Committee will meet on March 1-3, 2011, from 8 a.m. to 5 p.m. This meeting may close early if all business is finished. Written material and requests to make oral presentations should reach the Coast Guard on or before February 23, 2011.
The Committee will meet at the Renaissance Portsmouth Hotel and Waterfront Conference Center, 425 Water Street, Portsmouth, Virginia 23705.
Please send written material, comments, and requests to make oral presentations to Mr. Jack Kemerer, Assistant to the Designated Federal Official (DFO) of CFSAC, by one of the submission methods described below. All materials, comments, and requests must be identified by docket number [USCG-2011-0070].
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Mr. Jack Kemerer, Assistant to DFO of CFSAC, by telephone at 202-372-1249, fax 202-372-1917, email:
Notice of this meeting is given under the Federal Advisory Committee Act, 5 U.S.C. App. (Pub. L. 92-463). The CFSAC is authorized by 46 U.S.C. 4508 and the Committee's purpose is to provide advice and recommendations to the U.S. Coast Guard and the Department of Homeland Security on matters relating to the safety of commercial fishing industry vessels.
The agenda for the CFSAC meeting is as follows:
(1) Review of Fishing Vessel Safety Requirements changes from the Coast Guard Authorization Act of 2010.
(2) Status of Commercial Fishing Vessel Safety Rulemaking.
(3) Commercial Fishing Vessel Safety District Coordinators updates.
(4) Industry Representatives updates.
(5) Presentation on research and safety related projects by the National Institute for Occupational Safety and Health.
(6) Presentation on safety standards by the National Oceanic and Atmospheric Administration, National Marine Fisheries Service.
(7) Subcommittee sessions on: Communications and outreach; risk management; operator training; vessel construction and standards; safety and survival equipment; safety examinations; and safety program strategies, future plans, and long range goals.
(8) Opportunity for public to comment will be provided each day.
This meeting is open to the public. Please note that the meeting may close early if all business is finished. Members of the public may make oral presentations during the meeting. If you would like to make an oral presentation at the meeting, please notify the Designated Federal Officer no later than February 23, 2011. Written material for distribution at the meeting should reach the Coast Guard no later than February 18, 2011. Copies of all material that is received will be distributed to each member of the committee in advance of the meeting. Please submit a copy to the DFO for distribution to committee members no later than February 23, 2011.
For information on facilities or services for individuals with disabilities or to request special assistance at a meeting, contact the Designated Federal Officer as soon as possible, but no later than February 23, 2011.
30-Day Notice of Information Collection for Review; Student and Exchange Visitor Information System (SEVIS); OMB Control No. 1653-0038,
The Department of Homeland Security, U.S. Immigration and Customs Enforcement (ICE), will be submitting the following information collection request for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection is published to obtain comments from the public and affected agencies. Notice of this information collection was previously published in the
The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted for thirty days until April 15, 2011.
Written comments and suggestions from the public and affected agencies regarding items contained in this notice, and especially with regard to the estimated public burden and associated response time should be directed to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to OMB Desk Officer, for United States Immigration and Customs Enforcement, Department of Homeland Security, and sent via electronic mail to
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
Requests for a copy of the proposed information collection instrument, with instructions; or inquiries for additional information should be directed to: Office of the Chief Financial Officer/OAA/Records Branch, U.S. Immigration and Customs Enforcement, 500 12th Street SW., STOP 5705 Washington, DC 20536-5705.
Fish and Wildlife Service, Interior.
Notice of receipt of applications for permits.
We announce our receipt of applications to conduct certain activities pertaining to enhancement of survival of endangered species. The Endangered Species Act requires that we invite public comment on these permit applications.
Written comments on this request for a permit must be received by March 16, 2011.
Submit written data or comments to the Assistant Regional Director-Ecological Services, U.S. Fish and Wildlife Service, P.O. Box 25486, Denver Federal Center, Denver, CO 80225-0486; facsimile 303-236-0027.
Before including your address, phone number, e-mail address, or other personal indentifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Documents and other information submitted with these applications are available for review, subject to the requirements of the Privacy Act (5 U.S.C. 552a) and Freedom of Information Act (5 U.S.C. 552), by any party who submits a request for a copy of such documents within 30 days of the date of publication of this notice to Kris Olsen, by mail (
The following applicant has requested an issuance of enhancement of survival permit to conduct certain activities with endangered species pursuant to section 10(a)(1)(A) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Bureau of Indian Affairs, Interior.
Notice of Approved Tribal-State Class III Gaming Compact.
This notice publishes an extension of the Gaming Compact between the Oglala Sioux Tribe and the State of South Dakota.
Paula L. Hart, Director, Office of Indian Gaming, Office of the Deputy Assistant Secretary—Policy and Economic Development, Washington, DC 20240, (202) 219-4066.
Under section 11 of the Indian Gaming Regulatory Act of 1988 (IGRA), Public Law 100-497, 25 U.S.C. 2710, the Secretary of the Interior shall publish in the
Bureau of Land Management, Interior.
Notice of decision approving lands for conveyance.
As required by 43 CFR 2650.7(d), notice is hereby given that an appealable decision will be issued by the Bureau of Land Management (BLM) to Ahtna, Incorporated. The decision approves conveyance of the surface and subsurface estates in the lands described below pursuant to the Alaska Native Claims Settlement Act. The lands are in the vicinity of Mentasta Lake, Alaska, and are located in:
Containing approximately 14,143 acres.
Containing approximately 13,846 acres.
Containing approximately 2,452 acres.
Aggregating approximately 30,441 acres.
Notice of the decision will also be published four times in the
Any party claiming a property interest in the lands affected by the decision may appeal the decision within the following time limits:
1. Unknown parties, parties unable to be located after reasonable efforts have been expended to locate, parties who fail or refuse to sign their return receipt, and parties who receive a copy of the decision by regular mail which is not certified, return receipt requested, shall have until March 16, 2011 to file an appeal.
2. Parties receiving service of the decision by certified mail shall have 30 days from the date of receipt to file an appeal.
3. Notices of appeal transmitted by electronic means, such as facsimile or e-mail, will not be accepted as timely filed.
Parties who do not file an appeal in accordance with the requirements of 43 CFR part 4, subpart E, shall be deemed to have waived their rights.
A copy of the decision may be obtained from: Bureau of Land Management, Alaska State Office, 222 West Seventh Avenue, #13, Anchorage, Alaska 99513-7504.
The BLM by phone at 907-271-5960, by e-mail at
Bureau of Land Management, Interior.
Notice of filing of plats of survey; Arizona.
The plats of survey of the described lands were officially filed in the Arizona State Office, Bureau of Land Management, Phoenix, Arizona, on dates indicated.
The plat representing the establishment of the southwest and northwest township corners, Township 30 North, Range 6 East, accepted September 9, 2010, and officially filed September 15, 2010, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the establishment of the corner of sections 1, 2, 35 and 36, and the corner of sections 5, 6, 31 and 32, on the boundary between Townships. 31 and 32 North, Range 6 East and an electronic control monument, Township 31 North, Range 6 East, accepted September 9, 2010, and officially filed September 15, 2010, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat of Township 32 North, Range 6 East, representing the establishment of the corner of sections 1, 6, 7 and 12, on the boundary between Townships 32 North, Ranges 5 and 6 East, accepted September 9, 2010, and officially filed September 15, 2010, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the establishment of the northwest township corner, Township 32
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat of Township 33 North, Range 6 East, representing the establishment of the northwest township corner and an electronic control monument, and the
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the establishment of the northeast and northwest township corners and an electronic control monument, Township 30 North, Range 7 East, accepted September 9, 2010, and officially filed September 15, 2010, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat of Township 31 North, Range 7 East, representing the establishment of the northeast township corner and an electronic control monument, and the corner of sections 5, 6, 31 and 32, on the boundary between Townships 31 and 32 North, Range 7 East, accepted September 9, 2010, and officially filed September 15, 2010, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the establishment of the northeast and northwest township corners and an electronic control monument, Township 32 North, Range 7 East, accepted September 9, 2010, and officially filed September 15, 2010, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the establishment of the northwest township corner, Township 32
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the establishment of the southwest and northwest township corners and an electronic control monument, Township 33 North, Range 7 East, accepted October 29, 2010, and officially filed November 24, 2010, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the dependent resurvey of a portion of the west boundary, a portion of the subdivisional lines and a portion of the subdivision of section 7, the subdivision of section 18 and metes-and-bounds surveys in sections 7 and 18, Township 39 North, Range 7 East, accepted August 19, 2010, and officially filed August 24, 2010, for Group 1052, Arizona.
This plat was prepared at the request of the Bureau of Land Management.
The plat representing the establishment of the southwest and northwest township corners and an electronic control monument, Township 30 North, Range 8 East, accepted September 9, 2010, and officially filed September 15, 2010, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the establishment of the northwest township corner and an electronic control monument, Township 31 North, Range 8 East, accepted September 9, 2010, and officially filed September 15, 2010, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the establishment of the northwest township corner and an electronic control monument, Township 32 North, Range 8 East, accepted September 9, 2010, and officially filed September 15, 2010, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the establishment of the northwest township corner, Township 32
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the establishment of the southeast, southwest, northeast and northwest township corners and an electronic control monument, Township 33 North, Range 8 East, accepted September 9, 2010, and officially filed September 15, 2010, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the establishment of the northwest township corner and an electronic control monument, Township 33 North, Range 9 East, accepted October 29, 2010, and officially filed November 24, 2010, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the establishment of the northeast township corner, Township 33
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the establishment of the northwest township corner and an electronic control monument, Township 34 North, Range 9 East, accepted January 24, 2011, and officially filed January 27, 2011, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the establishment of the northwest township corner and an electronic control monument, Township 35 North, Range 9 East, accepted January 24, 2011, and officially filed January 27, 2011, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the establishment of the northwest township corner and an electronic control monument, Township 36 North, Range 9 East, accepted January 24, 2011, and officially filed January 27, 2011, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the establishment of the northeast township corner, Township 33
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the establishment of the northeast and northwest township corners and an electronic control monument, Township 34 North, Range 10 East, accepted January 3, 2011, and officially filed January 7, 2011, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the establishment of the northeast and northwest township corners and an electronic control monument, Township 35 North, Range 10 East, accepted January 3, 2011, and officially filed January 7, 2011, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the establishment of the northeast and northwest township corners and an electronic control monument, Township 36 North, Range 10 East, accepted January 3, 2011, and officially filed January 7, 2011, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the establishment of an electronic control monument, Township 33 North, Range 11 East, accepted January 24, 2011, and officially filed January 27, 2011, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the geographic positions of township corners, Township 33
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the establishment of an electronic control monument, Township 34 North, Range 11 East, accepted January 24, 2011, and officially filed January 27, 2011, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the establishment of an electronic control monument, Township 35 North, Range 11 East, accepted January 24, 2011, and officially filed January 27, 2011, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the establishment of an electronic control monument, Township 36 North, Range 11 East, accepted January 24, 2011, and officially filed January 27, 2011, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the establishment of the northeast and northwest township corners and an electronic control monument, Township 33 North, Range 12 East, accepted November 29, 2010, and officially filed December 1, 2010, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the establishment of the northeast and northwest township corners, Township 33
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the establishment of the northeast and northwest township corners and an electronic control monument, Township 34 North, Range 12 East, accepted November 29, 2010, and officially filed December 1, 2010, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the establishment of the northeast and northwest township corners and an electronic control monument, Township 35 North, Range 12 East, accepted November 29, 2010, and officially filed December 1, 2010, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the establishment of the northeast and northwest township corners and an electronic control monument, Township 36 North, Range 12 East, accepted November 29, 2010, and officially filed December 1, 2010, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the establishment of the southeast and northeast township corners, Township 33 North, Range 12
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the establishment of the northeast township corner, Township 33
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the establishment of the northeast township corner, Township 34 North, Range 12
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the establishment of the northeast township corner, Township 35 North, Range 12
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the geographic positions of the township corners, Township 36 North, Range 12
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the dependent resurvey of the south and east boundaries and a portion of the subdivisional lines and the subdivision of sections 1 through 3 and 5 through 36, Township 22 North, Range 21 East, accepted June 8, 2010, and officially filed June 11, 2010, for Group 1064, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the dependent resurvey of the Ninth Standard Parallel North (south boundary) and the east, west and north boundaries and the survey of the subdivisional lines, Township 37 North, Range 30 East, accepted July 20, 2010, and officially filed July 23, 2010, for Group 1062, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat (in 2 sheets) representing the dependent resurvey of the Ninth Standard Parallel North (south boundary) and the north boundary and the survey of the subdivisional lines and the subdivision of section 19 and a metes-and-bounds survey, Township 37 North, Range 31 East, accepted July 20, 2010, and officially filed July 23, 2010, for Group 1062, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat (in 4 sheets) representing the dependent resurvey of a portion of the Gila and Salt River Principal Meridian (the east boundary), a portion of the south boundary, portions of General Survey Nos. 12 (Lot 39), 187 (Lot 50), 267 (Lot 49), portions of Mineral Survey Nos. 853 (Lot 52), 1058 (Lot 55), 1111, 1318, 1713, 1827, 1980, 2414, 2863,
This plat was prepared at the request of the United States Forest Service.
The plat representing the dependent resurvey of a portion of the subdivisional lines, Township 41 North, Range 15 West, accepted January 4, 2011, and officially filed January 20, 2011, for Group 1088, Arizona.
This plat was prepared at the request of the Bureau of Land Management.
The plat representing the dependent resurvey of the Base Line and a portion of the subdivisional lines and the survey of a metes-and-bounds survey in section 36, Township 1 North, Range 24 West, accepted November 15, 2010, and officially filed November 17, 2010, for Group 1084, Arizona.
This plat was prepared at the request of the Bureau of Land Management.
The plat representing the dependent resurvey of a portion of the northeast boundary of the Gila River Indian Reservation, a portion of the subdivisional lines, a portion of the subdivision of section 1 and Tract 37, and the subdivision of section 1, Township 1 South, Range 1 East, accepted December 2, 2010, and officially filed December 7, 2010, for Group 1072, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Western Regional Office.
The plat representing the dependent resurvey of a portion of the subdivisional lines, Township 4 South, Range 12 East, accepted August 3, 2010, and officially filed August 6, 2010, for Group 1040, Arizona.
This plat was prepared at the request of the Bureau of Land Management.
A person or party who wishes to protest against any of these surveys must file a written protest with the Arizona State Director, Bureau of Land Management, stating that they wish to protest.
A statement of reasons for a protest may be filed with the notice of protest to the State Director, or the statement of reasons must be filed with the State Director within thirty (30) days after the protest is filed.
These plats will be available for inspection in the Arizona State Office, Bureau of Land Management, One North Central Avenue, Suite 800, Phoenix, Arizona 85004-4427.
National Park Service, Interior.
Notice of public meeting for the National Park Service Alaska Region's Subsistence Resource Commission (SRC) program.
The Denali National Park SRC will meet to develop and continue work on National Park Service (NPS) subsistence hunting program recommendations and other related subsistence management issues. The NPS SRC program is authorized under Title VIII, Section 808 of the Alaska National Interest Lands Conservation Act, Public Law 96-487, to operate in accordance with the provisions of the Federal Advisory Committee Act.
The proposed meeting agenda includes the following:
Nominations for the following properties being considered for listing or related actions in the National Register were received by the National Park Service before January 8, 2011. Pursuant to §§ 60.13 or 60.15 of 36 CFR
Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Federal Bureau of Investigation (FBI), Justice.
Meeting notice.
The purpose of this notice is to announce the meeting of the Criminal Justice Information Services (CJIS) Advisory Policy Board (APB). The CJIS APB is a federal advisory committee established pursuant to the Federal Advisory Committee Act (FACA). This meeting announcement is being published as required by Section 10 of the FACA.
The CJIS APB is responsible for reviewing policy issues and appropriate technical and operational issues related to the programs administered by the FBI's CJIS Division, and thereafter, making appropriate recommendations to the FBI Director. The programs administered by the CJIS Division are the Integrated Automated Fingerprint Identification System, Interstate Identification Index, Law Enforcement Online, National Crime Information Center, National Instant Criminal Background Check System, National Incident-Based Reporting System, Law Enforcement National Data Exchange, and Uniform Crime Reporting.
The meeting will be open to the public on a first-come, first-seated basis. Any member of the public wishing to file a written statement concerning the CJIS Division's programs or wishing to address this session should notify the CJIS Designated Federal Officer, R. Scott Trent at (304) 625-5263 at least 24 hours prior to the start of the session. The notification should contain the requestor's name, corporate designation, and consumer affiliation or government designation along with a short statement describing the topic to be addressed and the time needed for the presentation. A requestor will ordinarily be allowed no more than 15 minutes to present a topic.
The APB will meet in open session from 8:30 a.m. until 5 p.m., on June 2-3, 2011.
The meeting will take place at The Hyatt Regency Crown Center, 2345 McGhee Street, Kansas City, Missouri 64108, telephone (816) 421-1234.
Inquiries may be addressed to Ms. Skeeter J. Murray; Management and Program Assistant; Training and Systems Education Unit, Resources Management Section; FBI CJIS Division, Module C3, 1000 Custer Hollow Road, Clarksburg, West Virginia 26306-0149; telephone (304) 625-3518, facsimile (304) 625-5090.
8 a.m. to 4:30 p.m. on Monday, March 7, 2011.
8 a.m. to 4:30 p.m. on Tuesday, March 8, 2011.
National Institute of Corrections, 500 First Street, NW., Washington, DC 20534, 1 (800) 995-6423.
Open.
Briefing on NIC Reports; Agency Reports; Quarterly Report by Office of Justice Programs.
Thomas Beauclair, Deputy Director, 202-307-3106, ext. 44254.
Employment and Training Administration, U. S. Department of Labor.
Notice of meeting.
Pursuant to Section 10(a)(2) of the Federal Advisory Committee Act (FACA) (Pub. L. 92-463), as amended, and Section 166(h)(4) of the Workforce Investment Act (WIA) [29 U.S.C. 2911(h)(4)], notice is hereby given of the next meeting of the Native American Employment and Training Council (Council), as constituted under WIA.
The meeting will begin at 1:30 p.m. (Eastern Time) on Wednesday, March 2, 2011, and continue until 4:30 p.m. that day. The meeting will reconvene at 9 a.m. on Thursday, March 3, 2011, and adjourn at 4:30 p.m. that day. The period from 2:30 p.m. to 4:30 p.m. on March 2, 2011, will be reserved for participation and presentations by members of the public.
The meetings will be held at the U.S. Bureau of Labor Statistics, Postal Square Building, 2 Massachusetts Avenue, NE., Washington, DC 20212.
The meeting will be open to the public. Members of the public not present may submit a written statement on or before March 1, 2011, to be included in the record of the meeting. Statements are to be submitted to Mrs. Evangeline M. Campbell, Designated Federal Official (DFO), U.S. Department of Labor, 200 Constitution Avenue, NW., Room S-4209, Washington, DC 20210. Persons who need special accommodations should contact Mr. Craig Lewis at (202) 693-3384, at least two business days before the meeting. The formal agenda will focus on the following topics: (1) U.S. Department of Labor, Employment and Training Program Year 2011 One Year Training and Employment Guidance Letter; (2) U.S. Department of Labor Tribal Consultation Policy; (3) Native American Employment and Training Council Charter; (4) Transfer of Grants Management Duties to the Regions Proposal; (5) Education Measure Report and Recommendations; (6) Election of Council Chair and Vice-Chair; (7) New Council Member Introduction and Briefing; (8) Council Update; (9) Council Workgroup Reports; and (10) Council Recommendations.
Mrs. Campbell, DFO, Indian and Native American Program, Employment and Training Administration, U.S. Department of Labor, Room S-4209, 200 Constitution Avenue, NW., Washington, DC 20210. Telephone number (202) 693-3737 (VOICE) (this is not a toll-free number).
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, Public Law 92-463, as amended, the National Aeronautics and Space Administration (NASA) announces a meeting of the Science Committee of the NASA Advisory Council (NAC). This Committee reports to the NAC. The Meeting will be held for the purpose of soliciting from the scientific community and other persons scientific and technical information relevant to program planning.
DATES: Thursday, March 3, 2011, 8:30 a.m. to 5 p.m., and Friday, March 4, 2011, 8:30 a.m. to 2 p.m., Local Time.
NASA Headquarters, 300 E Street, SW., Rooms 9H40 and 3H46 consecutively, Washington, DC 20546.
Ms. Marian Norris, Science Mission Directorate, NASA Headquarters, Washington, DC 20546, (202) 358-4452, fax (202) 358-4118, or
The meeting will be open to the public up to the capacity of the room. This meeting is also available telephonically and by WebEx. Any interested person may call the USA toll free conference call number 888-972-6406, pass code Science Committee, to participate in this meeting by telephone. The WebEx link is
It is imperative that the meeting be held on these dates to accommodate the scheduling priorities of the key participants. Attendees will be requested to sign a register and to comply with NASA security requirements, including the presentation of a valid picture ID, before receiving an access badge. Foreign nationals attending this meeting will be required to provide a copy of their
10 a.m., Thursday, February 17, 2011.
Board Room, 7th Floor, Room 7047. 1775 Duke Street (All visitors must use Diagonal Road Entrance) Alexandria, VA 22314-3428.
Open.
1. Final Interpretive Ruling and Policy Statement 11-02, Corporate Federal Credit Union Chartering Guidelines.
2. Proposed Rule, Parts 741 and 751 of NCUA's Rules and Regulations, Incentive-Based Compensation Arrangements.
3. Proposed Rule, Parts 703, 704, 709 and 742 of NCUA's Rules and Regulations, Replacement or Removal of References to Credit Ratings in NCUA Regulations.
4. Interest Rate Ceiling Determination.
5. Insurance Fund Report.
11:15 a.m.
11:30 a.m., Thursday, February 17, 2011.
Board Room, 7th Floor, Room 7047, 1775 Duke Street, Alexandria, VA 22314-3428.
Closed.
1. Creditor Claim and Insurance Appeals (4). Closed pursuant to some or all of the following: Exemptions (4) and (6).
2. Consideration of Supervisory Activities (2). Closed pursuant to some or all of the following: Exemptions (5), (8), (9)(A)(ii) and 9(B).
Mary Rupp, Secretary of the Board, Telephone: 703-518-6304.
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation announces the following meeting:
The National Science Board's Committee on Program and Plans, pursuant to NSF regulations (45 CFR Part 614), the National Science Foundation Act, as amended (42 U.S.C. 1862n-5), and the Government in the Sunshine Act (5 U.S.C. 552b), hereby gives notice of an Impromptu Change in regard to the scheduling of a meeting for the transaction of National Science Board business and other matters specified, as follows:
Open Session, Monday, February 14, at 1 p.m. to 3:30 p.m. Closed Session, Monday, February 14, at 3:30 p.m. to 4:15 p.m.
Open Session, Monday, February 14, at 12:15 p.m. to 2:45 p.m. Closed Session, Monday, February 14, at 5:15 p.m. to 6:15 p.m.
No change.
No change.
Room 1295 or 1235, National Science Foundation, 4201Wilson Blvd., Arlington, VA 22230.
Room 1295. Public overflow room for the open session will be located in room 130, National Science Foundation, 4201 Wilson Blvd., Arlington, VA 22230.
All visitors must report to the NSF visitor desk at the 9th and N. Stuart Streets entrance to receive a visitor's badge. Public visitors must arrange for a visitor's badge in advance. Call 703-292-7000 or e-mail
Please refer to the National Science Board website
Nuclear Regulatory Commission.
Issuance of Environmental Assessment and Finding of No Significant Impact for License Amendment.
Dennis Lawyer, Health Physicist, Commercial and R&D Branch, Division of Nuclear Materials Safety, Region 1, 475 Allendale Road, King of Prussia, Pennsylvania; telephone 610-337-5366; fax number 610-337-5269 or by e-mail:
The U.S. Nuclear Regulatory Commission (NRC) is considering the issuance of a license amendment to Source Materials License No. STC-133. This license is held by Defense Logistics Agency, DLA Strategic Materials (the Licensee), for its Depot located on State Route 14 in New Haven, Indiana (the Facility). Issuance of the amendment would authorize release of the Facility for unrestricted use. The Licensee requested this action in a letter dated February 24, 2009. The NRC has prepared an Environmental Assessment (EA) in support of this proposed action in accordance with the requirements of Title 10, Code of Federal Regulations (CFR), Part 51 (10 CFR Part 51). Based on the EA, the NRC has concluded that a Finding of No Significant Impact (FONSI) is appropriate with respect to the proposed action. The amendment will be issued to the Licensee following the publication of this FONSI and EA in the
The proposed action would approve the Licensee's February 24, 2009, license amendment request, resulting in release of the Facility for unrestricted use. License No. STC-133 was issued on February 14, 1957, pursuant to 10 CFR Part 40, and has been amended periodically since that time. This license authorized the Licensee to have unsealed source material for purposes of storage, sampling, repackaging, and transfer.
The Facility is situated on 268 acres and consists of warehouses and other office and support buildings. The Facility is located in a mixed rural and industrial area. Within the Facility, use of licensed materials was confined to the locations as described in the Licensee's Final Status Survey Report dated January 2009. Locations included outside storage areas covering 2300 square meters; warehouses 210-215 covering 16,054 square meters; and support buildings 136, 141, 145, and 146.
On September 24, 2004, the Licensee ceased licensed activities and initiated a survey and decontamination of the Facility. Based on the Licensee's historical knowledge of the site and the conditions of the Facility, the Licensee determined that only routine decontamination activities, in accordance with their NRC-approved, operating radiation safety procedures, were required. The Licensee was not required to submit a decommissioning plan to the NRC because worker cleanup activities and procedures were consistent with those approved for routine operations (
The Licensee has ceased conducting licensed activities at the Facility, and seeks the unrestricted use of its Facility.
The historical review of licensed activities conducted at the Facility shows that such activities involved use of the following radionuclides with half-lives greater than 120 days: natural uranium and thorium mixtures. Prior to performing the final status survey, the Licensee conducted decontamination activities, as necessary, in the areas of the Facility affected by these radionuclides.
The Licensee conducted final status surveys during October and November 2006; June, August, and September 2007; and February 2008. These surveys covered the affected areas of the facility. The final status survey report was attached to the Licensee's amendment request dated February 24, 2009. The Licensee elected to demonstrate compliance with the radiological criteria for unrestricted release as specified in 10 CFR 20.1402 by developing derived concentration guideline levels (DCGLs) for its Facility. The Licensee conducted site-specific dose modeling using input parameters specific to the Facility, which included the soil's site-specific physical properties. The Licensee thus determined the maximum amount of residual radioactivity on building surfaces, equipment, materials and soils that will satisfy the NRC requirements in Subpart E of 10 CFR Part 20 for unrestricted release. The NRC previously reviewed the Licensee's methodology and proposed DCGLs, and concluded that the proposed DCGLs are acceptable for use as release criteria at the Facility. The NRC's approval of the Licensee's proposed DCGLs was published in the
The NRC staff had confirmatory surveys conducted during October 5-8, 2009. Some of the area results indicated a need to perform further investigation sampling. The Licensee completed additional sampling and mitigation and final surveys during July 2010. The NRC staff conducted a follow up confirmatory survey on July 22 and 23, 2010, and performed an inspection of the licensee's sampling, mitigation, and final status survey. None of the final confirmatory sample results exceeded the DCGLs established for the Facility. Based on its review, the staff has determined that the affected environment and any environmental impacts associated with the proposed action are bounded by the impacts
The NRC staff finds that the proposed release of the Facility for unrestricted use and the termination of the NRC materials license is in compliance with 10 CFR 20.1402. Based on its review, the staff considered the impact of the residual radioactivity at the Facility and concluded that the proposed action will not have a significant effect on the quality of the human environment.
Due to the largely administrative nature of the proposed action, its environmental impacts are small. Therefore, the only alternative the staff considered is the no-action alternative, under which the staff would leave things as they are by simply denying the amendment request. This no-action alternative is not feasible because it conflicts with 10 CFR 40.42, requiring that decommissioning of source material facilities be completed and approved by the NRC after licensed activities cease. The NRC's analysis of the Licensee's final status survey data confirmed that the Facility meets the requirements of 10 CFR 20.1402 for unrestricted release and the NRC has no reason not to approve release of the Facility. Additionally, denying the amendment request would result in no change in current environmental impacts. The environmental impacts of the proposed action and the no-action alternative are therefore similar, and the no-action alternative is accordingly not further considered.
The NRC staff has concluded that the proposed action is consistent with the NRC's unrestricted release criteria specified in 10 CFR 20.1402 and that the proposed action will not significantly impact the quality of the human environment.
NRC provided a draft of this Environmental Assessment to the Indiana State Department of Health for review on January 7, 2011. On January 12, 2011, Indiana State Department of Health, Radiological Health Program responded by electronic mail. The State agreed with the conclusions of the EA and otherwise had no comments.
The NRC staff has determined that the proposed action is of a procedural nature, and will not affect listed species or critical habitat. Therefore, no further consultation is required under Section 7 of the Endangered Species Act. The NRC staff has also determined that the proposed action is not the type of activity that has the potential to cause effects on historic properties. Therefore, no further consultation is required under Section 106 of the National Historic Preservation Act.
The NRC staff has prepared this EA in support of the proposed action. On the basis of this EA, the NRC finds that there are no significant environmental impacts from the proposed action, and that preparation of an environmental impact statement is not warranted. Accordingly, the NRC has determined that a Finding of No Significant Impact is appropriate.
Documents related to this action, including the application for license amendment and supporting documentation, are available electronically at the NRC's Electronic Reading Room at
1. NUREG-1757, “Consolidated NMSS Decommissioning Guidance;”
2. Title 10 Code of Federal Regulations, Part 20, Subpart E, “Radiological Criteria for License Termination;”
3. Title 10, Code of Federal Regulations, Part 51, “Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions;” and
4. NUREG-1496, “Generic Environmental Impact Statement in Support of Rulemaking on Radiological Criteria for License Termination of NRC-Licensed Nuclear Facilities.”
5. Defense Logistics Agency request letter dated February 24, 2009 [ML090630138]
6. Defense Logistics Agency deficiency response letter dated May 19, 2009 [ML091410397]
7. Defense Logistics Agency deficiency response letter dated July 27, 2009 [ML092110028]
8. Oak Ridge Institute for Science and Education Report dated February 2010 [ML092800227]
9. Defense Logistics Agency deficiency response letter dated April 8, 2010 [ML101030841]
10. Defense Logistics Agency additional information letter dated October 21, 2010 [ML102950429]
11. Defense Logistics Agency additional information letter dated November 10, 2010 [ML103200071]
12. Oak Ridge Institute for Science and Education letter dated August 20, 2010 [ML102430288]
If you do not have access to ADAMS, or if there are problems in accessing the documents located in ADAMS, contact the NRC Public Document Room (PDR) Reference staff at 1-800-397-4209, 301-415-4737, or by e-mail to
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission (NRC).
Solicitation of public comment.
The NRC staff is soliciting public comment on its proposed Interim Staff Guidance (ISG) COL-ISG-022 entitled “Impacts of Construction of
Comments must be filed no later than 30 days from the date of publication of this notice in the
You may submit comments by any one of the following methods. Please include Docket ID: NRC-2011-0031 in the subject line of your comments. Comments submitted in writing or in electronic form will be posted on the NRC Web site and on the Federal rulemaking Web site at
The NRC requests that any party soliciting or aggregating comments received from other persons for submission to the NRC inform those persons that the NRC will not edit their comments to remove any identifying or contact information, and therefore, they should not include any information in their comments that they do not want publicly disclosed.
The NRC ADAMS provides text and image files of NRC's public documents. These documents may be accessed through the NRC's Public Electronic Reading Room on the Internet at
Mr. William F. Burton, Chief, Rulemaking and Guidance Development Branch, Division of New Reactor Licensing, Office of New Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone at 301-415-6332 or e-mail at
The agency posts its issued staff guidance in the agency external web page (
The NRC staff is issuing this notice to solicit public comments on the proposed COL-ISG-022. After the NRC staff considers any public comments, it will make a determination regarding the proposed COL-ISG-022.
For the Nuclear Regulatory Commission.
In accordance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 which provides opportunity for public comment on new or revised data collections, the Railroad Retirement Board (RRB) will publish periodic summaries of proposed data collections.
1.
The RRB utilizes Form DR-423, Financial Disclosure Statement, to obtain information about the overpaid beneficiary's income, debts, and expenses if that person indicates that (s)he cannot make restitution for the overpayment. The information is used to determine if the overpayment should be waived as wholly or partially uncollectible. If waiver is denied, the information is used to determine the size and frequency of installment payments. The beneficiary is made aware of the overpayment by letter and is offered a variety of methods for recovery. One response is requested of each respondent. Completion is voluntary. However, failure to provide the requested information may result in a denial of the waiver request.
The RRB is proposing revisions to Form DR-423 for clarification purposes that include the addition of items related to employment, income,
2
Section 2(d)(4) of the Railroad Retirement Act (RRA), provides, in part, that a child is deemed dependent if the conditions set forth in Section 202(d)(3),(4) and (9) of the Social Security Act are met. Section 202(d)(4) of the Social Security Act, as amended by Public Law 104-121, requires as a condition of dependency, that a child receives one-half of his or her support from the stepparent. This dependency impacts upon the entitlement of a spouse or survivor of an employee whose entitlement is based upon having a stepchild of the employee in care, or on an individual seeking a child's annuity as a stepchild of an employee. Therefore, depending on the employee for at least one-half support is a condition affecting eligibility for increasing an employee or spouse annuity under the social security overall minimum provisions on the basis of the presence of a dependent child, the employee's natural child in limited situations, adopted children, stepchildren, grandchildren and step-grandchildren and equitably adopted children. The regulations outlining child support and dependency requirements are prescribed in 20 CFR 222.50-57.
In order to correctly determine if an applicant is entitled to a child's annuity based on actual dependency, the RRB uses Form G-139, Statement Regarding Contributions and Support of Children, to obtain financial information needed to make a comparison between the amount of support received from the railroad employee and the amount received from other sources. Completion is required to obtain a benefit. One response is required of each respondent. The RRB proposes no changes to Form G-139.
Comments regarding the information collection should be addressed to Patricia A. Henaghan, Railroad Retirement Board, 844 North Rush Street, Chicago, Illinois 60611-2092 or
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Securities Act Rule 173 (17 CFR 230.173) provides a notice of registration to investors who purchased securities in a registered offering under the Securities Act of 1933 (15 U.S.C. 77a
Written comments are invited on: (a) Whether this proposed collection of information is necessary for the performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden imposed by the collections of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in
Please direct your written comment to Thomas Bayer, Chief Information Officer, Securities and Exchange Commission, C/O Remi Pavlik-Simon, 6432 General Green Way, Alexandria, Virginia 22312; or send an e-mail to:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 433 (17 CFR 230.433) governs the use and filing of free writing prospectuses under the Securities Act of 1933 (15 U.S.C. 77a
Written comments are invited on: (a) Whether this proposed collection of information is necessary for the performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden imposed by the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
Please direct your written comment to Thomas A. Bayer, Chief Information Officer, Securities and Exchange Commission, C/O Remi Pavlik-Simon, 6432 General Green Way, Alexandria, Virginia 22312; or send an e-mail to:
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Exchange Rule 451 and Sections 905.02 and 905.03 of the Exchange's Listed Company Manual (the “Manual”) to amend the forms of letters contained in those rules to reflect the recent amendments to the Exchange's broker voting rules in relation to executive compensation proposals. The text of the proposed rule change is available at the Exchange, the Commission's Public Reference Room, and
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange recently amended Exchange Rule 452 and Section 402.08 of the Manual to provide that brokers which are record holders of shares held in client accounts will no longer be permitted to vote those shares on matters relating to executive compensation.
Supplementary Material .20 to Exchange Rule 451 and Sections 905.01, 905.02 and 905.03 contain specimens of letters containing the information and instructions required pursuant to the proxy rules to be given by NYSE member organizations to clients where the member organization is the record holder of shares beneficially owned by those clients in the circumstances where a broker (i) may vote on all proposals without voting instructions (Section 905.01), (ii) may not vote on any proposals without instructions (Section 905.02), and (iii) may vote on certain but not all proposals without instructions (Section 905.03). These letters are shown as examples and not as prescribed forms. Member organizations are permitted to adapt the
The Exchange is concerned that many shareholders receiving proxy materials from their brokers for meetings scheduled after effectiveness of the amendments to the NYSE broker voting rules in relation to executive compensation proposals will not be aware of those amendments and may therefore assume that the broker as record holder will vote their shares on such proposals if they do not return voting instructions to their broker. The NYSE believes it is important for as many shares as possible to be voted on such proposals and, therefore, believes it is important to educate retail investors with respect to the implications of their failure to return voting instructions under the amended rules. Consequently, the Exchange proposes to amend the forms of letters provided for use in connection with meetings where the broker may vote on none of the proposals before the meeting and meetings where the broker may vote on some but not all of the proposals before the meeting. The proposed amendments will insert language in those forms to alert beneficial holders that brokers will no longer be able to vote uninstructed shares on executive compensation matters. To limit the length of the letters, the Exchange proposes to modify language previously added with respect to the fact that brokers could no longer vote uninstructed shares on the election of directors for meetings scheduled after January 1, 2010.
The Exchange believes that the proposed rule change is consistent with Section 6(b)
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
Because the proposed rule change: (i) Does not significantly affect the protection of investors or the public interest; (ii) does not impose any significant burden on competition; and (iii) does not become operative for 30 days after the date of the filing, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest, provided that the self-regulatory organization has given the Commission written notice of its intent to file the proposed rule change at least five business days prior to the date of filing of the proposed rule change or such shorter time as designated by the Commission,
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On December 13, 2010, NYSE Arca, Inc. (“Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to list and trade the Shares of the Fund under NYSE Arca Equities Rule 8.600. The ETF will be an actively managed exchange traded fund and is a series of Grail Advisors ETF Trust (“Trust”). The Trust is registered with the Commission as an investment company.
The investment objective of the ETF is maximum current income, consistent with preservation of capital and daily liquidity. Under normal circumstances, the ETF will invest primarily in short-term, investment grade fixed income securities. Typically, the ETF will invest in money market securities and short-term debt securities, including U.S. treasuries and agencies, corporate and bank obligations, asset backed and mortgage backed instruments, commercial paper and other highly rated, short maturity securities. While the ETF may invest in securities of any maturity, under normal circumstances, the average duration of the portfolio is typically expected to be one year or less. Duration is a measure of the underlying portfolio's price sensitivity to changes in interest rates.
The ETF invests primarily in investment grade securities (Baa or higher by Moody's; BBB or higher by Standard & Poor's) that are rated by at least one nationally recognized statistical rating organization rating that security or, if unrated, determined by Western Asset to be of comparable quality. The ETF may invest only in U.S. dollar-denominated securities.
The ETF may invest in derivative instruments, such as futures and interest rate, total return and credit default swaps.
The ETF may not invest more than 15% of its net assets in: (1) Illiquid securities;
The ETF may invest in mortgage- or other asset-backed securities. Mortgage backed securities in which the Fund invests will be investment grade. Mortgage-related securities include mortgage pass-through securities, collateralized mortgage obligations (“CMOs”), commercial mortgage-backed securities, mortgage dollar rolls, CMO residuals, stripped mortgage-backed securities and other securities that directly or indirectly represent a participation in, or are secured by and payable from, mortgage loans on real property.
Additional information regarding the Fund and the Shares, the investment strategies, risks, creation and redemption procedures, fees, portfolio holdings and disclosure policies, distributions and taxes, availability of information, trading rules and halts, and surveillance procedures, among other things, can be found in the Registration Statement and in the Notice, as applicable.
The Commission has carefully reviewed the proposed rule change and finds that it is consistent with the requirements of Section 6 of the Act
The Commission finds that the proposal to list and trade the Shares on the Exchange is consistent with Section 11A(a)(1)(C)(iii) of the Act,
The Commission further believes that the proposal to list and trade the Shares is reasonably designed to promote fair disclosure of information that may be necessary to price the Shares appropriately and to prevent trading when a reasonable degree of transparency cannot be assured. The Commission notes that the Exchange will obtain a representation from the issuer of the Shares that the NAV per Share will be calculated daily and that the NAV and the Disclosed Portfolio will be made available to all market participants at the same time. In addition, if the Exchange becomes aware that the NAV or the Disclosed Portfolio is not disseminated to all market information as the NAV is available to all market participants.
The Exchange has represented that the Shares are deemed to be equity securities subject to the Exchange's existing rules governing the trading of equity securities. In support of this proposal, the Exchange has made representations, including:
(1) The Fund will meet the initial and continued listing requirements under NYSE Arca Equities Rule 8.600(d).
(2) The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions.
(3) The Exchange's surveillance procedures are adequate to properly monitor Exchange trading of the Shares in all trading sessions and to deter and detect violations of Exchange rules and applicable Federal securities laws.
(4) Prior to the commencement of trading, the Exchange will inform its ETP Holders in an Information Bulletin of the special characteristics and risks associated with trading the Shares. Specifically, the Information Bulletin will discuss the following: (a) The procedures for purchases and redemptions of Shares in Creation Unit aggregations (and that Shares are not individually redeemable); (b) NYSE Arca Equities Rule 9.2(a), which imposes a duty of due diligence on its ETP Holders to learn the essential facts relating to every customer prior to trading the Shares; (c) the risks involved in trading the Shares during the Opening and Late Trading Sessions when an updated PIV will not be calculated or publicly disseminated; (d) how information regarding the PIV is disseminated; (e) the requirement that ETP Holders deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; and (f) trading information.
(5) For initial and/or continued listing, the Shares must be in compliance with Rule 10A-3
(6) The ETF will not invest in non-U.S. equity securities.
(7) A minimum of 100,000 Shares of the Fund will be outstanding as of the start of trading on the Exchange.
For the foregoing reasons, the Commission finds that the proposed rule change is consistent with Section 6(b)(5) of the Act
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to amend its fees and rebates applicable to Members
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
In SR-EDGA-2011-01,
The Exchange proposes to add the “MT” flag to its fee schedule to be yielded when an order is routed to EDGX MPM using the IOCM routing strategy. The Exchange also proposes to assess a fee of $0.0010 per share to reflect a pass through of the EDGX MPM fee.
EDGA Exchange proposes to implement this amendment to the Exchange fee schedule on February 4, 2011.
The Exchange believes that the proposed rule change is consistent with the objectives of Section 6 of the Act,
The Exchange notes that it operates in a highly competitive market in which market participants can readily direct order flow to competing venues if they deem fee levels at a particular venue to be excessive. The proposed rule change reflects a competitive pricing structure designed to incent market participants to direct their order flow to the Exchange. The Exchange believes that the proposed rates are equitable in that they apply uniformly to all Members. The Exchange believes the fees and credits remain competitive with those charged by other venues and therefore continue to be reasonable and equitably allocated to Members.
The proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
The foregoing rule change has become effective pursuant to Section 19(b)(3) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange, pursuant to Section 19(b)(1) of the Act
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to request permanent approval of the Exchange's pilot program to permit the Exchange to accept inbound orders that NES routes in its capacity as a facility of NASDAQ (with the attendant obligations and conditions). Currently, NES is the approved outbound routing facility of the NASDAQ Stock Market LLC (“NASDAQ”) for cash equities, providing outbound routing from NASDAQ to other market centers.
In the initial Order, the Commission granted the BX and NES inbound routing relationship on a pilot basis. During this pilot period, BX committed to the following conditions:
1. The Exchange and FINRA will enter into a regulatory services agreement (“Regulatory Contract”), as well as an agreement pursuant to Rule 17d-2 under the Act (“17d-2 Agreement”).
2. FINRA will monitor NES for compliance with the Exchange's trading rules, and will collect and maintain certain related information;
3. FINRA will provide a report to the Exchange's chief regulatory officer (“CRO”), on a quarterly basis, that: (i) Quantifies all alerts (of which FINRA is aware) that identify NES as a participant that has potentially violated Commission or Exchange rules, and (ii) lists all investigations that identify NES as a participant that has potentially violated Commission or Exchange rules;
4. adopt Rule 2140(c), which requires NASDAQ OMX, as the holding company owning both the Exchange and NES, to establish and maintain procedures and internal controls reasonably designed to ensure that NES does not develop or implement changes to its system, based on non-public information obtained regarding planned changes to the Exchange's systems as a result of its affiliation with the Exchange, until such information is available generally to similarly situated Exchange members, in connection with the provision of inbound order routing to the Exchange;
5. That the routing of orders from NES to the Exchange, in NES's capacity as a facility of Nasdaq, be authorized for a pilot period of twelve months.
The Exchange has met all the above-listed conditions. By meeting the above-conditions, the Exchange has set up mechanisms that protect the independence of the Exchange's regulatory responsibility with respect to NES, as well as demonstrate that NES cannot use any information advantage it may have because of its affiliation with the Exchange. Since the Exchange has met all the above-listed conditions, it now seeks permanent approval of the BX and NES inbound routing relationship. The Exchange will continue to comply with the conditions 1-4 stated above.
The Exchange believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were either solicited or received.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Small Business Administration.
Notice of reporting requirements submitted for OMB review.
Under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35), agencies are required to submit proposed reporting and recordkeeping requirements to OMB for review and approval, and to publish a notice in the
Submit comments on or before March 16, 2011. If you intend to comment but cannot prepare comments promptly, please advise the OMB Reviewer and the Agency Clearance Officer before the deadline.
Address all comments concerning this notice to: Agency Clearance Officer, Jacqueline White, Small Business Administration, 409 3rd Street, SW., 5th Floor, Washington, DC 20416; and OMB Reviewer, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Washington, DC 20503.
Jacqueline White, Agency Clearance Officer, (202) 205-7044.
U.S. Small Business Administration.
Notice of open Federal Interagency Task Force meeting.
The SBA is issuing this notice to announce the location, date, time, and agenda for the second public meeting of the Interagency Task Force on Veterans Small Business Development. The meeting will be open to the public.
Friday, February 25, 2011, from 9 a.m. to 12 Noon in the Eisenhower Conference Room, Side A & B, located on the 2nd floor.
U.S. Small Business Administration, 409 3rd Street, SW., Washington, DC 20416.
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (5 U.S.C., Appendix 2), SBA announces the meeting of the Interagency Task Force on Veterans Small Business Development. The Task Force is established pursuant to Executive Order 13540 and focused on coordinating the efforts of Federal agencies to improve capital, business development opportunities and pre-established Federal contracting goals for small business concerns owned and controlled by veterans (VOB's) and service-disabled veterans (SDVOSB'S). Moreover, the Task Force shall coordinate administrative and regulatory activities and develop proposals relating to “six focus areas”: (1) Access to capital (loans, surety bonding and franchising); (2) Ensure achievement of pre-established contracting goals, including mentor protégé and matching with contracting opportunities; (3) Increase the integrity of certifications of status as a small business; (4) Reducing paperwork and administrative burdens in accessing business development and entrepreneurship opportunities; (5) Increasing and improving training and counseling services; and (6) Making other improvements to support veteran's business development by the Federal Government.
The Interagency Task Force on Veterans Small Business Development shall submit to the President, no later than one year after its first meeting, a report on the performance of its functions and any proposals developed pursuant to the “six focus areas” identified above. The purpose of the meeting is scheduled as a full Task Force meeting. The agenda will include presentations and discussion from the Task Force Subcommittees on their progress regarding the “six focus areas” of the Task Force. In addition, the Task Force will allow time for obtaining public comment from individuals and representatives of organizations regarding the areas of focus.
The meeting is open to the public; however, advance notice of attendance is requested. Anyone wishing to attend and/or make a presentation to the Task Force must contact Raymond B. Snyder, by February 21, 2011, by e-mail in order to be placed on the agenda. Comments for the Record should be applicable to the “six focus areas” of the Task Force and e-mailed prior to the meeting for inclusion in the public record; verbal presentations, however, will be limited to five minutes in the interest of time and to accommodate as many presenters as possible.
Written comments should be e-mailed to Raymond B. Snyder, Deputy Associate Administrator, Office of Veterans Business Development, U.S. Small Business Administration, 409 3rd Street, SW., Washington, DC 20416, at the e-mail address for the Task Force,
Additionally, if you need accommodations because of a disability or require additional information, please contact Raymond B. Snyder, Designated Federal Official for the Task Force at (202) 205-6773; or by e-mail at:
The Social Security Administration (SSA) publishes a list of information collection packages requiring clearance by the Office of Management and Budget (OMB) in compliance with Public Law 104-13, the Paperwork Reduction Act of 1995, effective October 1, 1995. This notice includes revisions to and an extension of OMB-approved information collections.
SSA is soliciting comments on the accuracy of the agency's burden estimate; the need for the information; its practical utility; ways to enhance its quality, utility, and clarity; and ways to minimize burden on respondents, including the use of automated collection techniques or other forms of information technology. Mail, e-mail, or fax your comments and recommendations on the information collection(s) to the OMB Desk Officer and SSA Reports Clearance Officer at the following addresses or fax numbers.
I. The information collections below are pending at SSA. SSA will submit them to OMB within 60 days from the date of this notice. To be sure we consider your comments, we must receive them no later than April 15, 2011. Individuals can obtain copies of the collection instruments by calling the SSA Reports Clearance Officer at 410-965-8783 or by writing to the above e-mail address.
1. Medicare Modernization Act Outreach Mailer—20 CFR 418—0960-0773. To promote awareness of the Medicare Part D subsidy program and encourage potentially eligible Medicare beneficiaries to complete Form SSA-1020 (OMB No. 0960-0696, the Application for Extra Help with Medicare Prescription Drug Plan Costs), SSA uses an outreach brochure that includes a mailer. Pharmacies, doctors' offices, and medical clinics display and distribute copies of the brochure/mailer to encourage eligible Medicare beneficiaries to request and complete Form SSA-1020. Using a recorded, automated message telephone call that will not require any conversation with respondents, SSA follows up with beneficiaries who use the mailer to request an SSA-1020 but do not submit it to the agency. The respondents are Medicare beneficiaries who are potentially eligible for Part D subsidy benefits and who request a copy of Form SSA-1020, using the SSA-1023 mailer.
2. Medicare Income-Related Monthly Adjustment Amount—Life-Changing Event Form—0960-0784. Per the Medicare Modernization Act of 2003, reductions in the Federal subsidy for Medicare medical coverage (Medicare Part B) result in selected Medicare Part B recipients paying an income-related monthly adjustment amount (IRMAA). The Internal Revenue Service transmits income tax return data to SSA for SSA to determine the IRMAA. SSA uses Form SSA-44 to determine if a recipient qualifies for a reduction in the IRMAA. If affected Medicare recipients believe SSA should use more recent tax data because of a life-changing event that significantly reduces their income, they can report these changes to SSA and ask for a new initial determination of their IRMAA.
In November 2010, we requested emergency OMB clearance for a new SSA-44 to fulfill the provisions of the Affordable Care Act (Pub. L. 111-148), which mandates reductions in the Federal Medicare Part D prescription drug coverage subsidies, resulting in higher premiums for those who have this coverage and who have income above a specific threshold. The provisions of the law became effective January 1, 2011, and we obtained emergency clearance for this form on November 23, 2010. We are now seeking full OMB clearance for this form. The respondents are Medicare Part B and prescription drug coverage recipients and enrollees with modified adjusted gross income over a high-income threshold who experience one of the eight significant life-changing events.
II. SSA has submitted the information collection listed below to OMB for clearance. Your comments on the information collection would be most useful if OMB and SSA receive them within 30 days from the date of this publication. To be sure we consider your comments, we must receive them no later than March 16, 2011. You can obtain a copy of the OMB clearance package by calling the SSA Reports Clearance Officer at 410-965-8783 or by writing to the above e-mail address.
State Death Match Collections—20 CFR 404.301, 404.310-404.311, 404.316, 404.330-404-341, 404.350-404.352, 404.371; 416.912—0960-0700. SSA uses the State Death Match Collections to ensure the accuracy of payment files by detecting unreported or inaccurate deaths of beneficiaries. Under the
The Department of State issued a Presidential permit to the General Services Administration on January 18, 2011, authorizing that agency to expand, renovate, operate, and maintain the commercial and pedestrian border crossing called “Nogales-Mariposa” in the vicinity of Nogales, Arizona, at the International Boundary between the United States and Mexico. In making this determination, the Department complied with the procedures required under Executive Order 11423, as amended.
Stewart Tuttle, U.S.-Mexico Border Affairs Coordinator, via e-mail at
Following is the text of the issued permit: By virtue of the authority vested in me as Under Secretary of State for Economic, Energy, and Agricultural Affairs under Executive Order 11423, 33 FR 11741 (1963), as amended by Executive Order 12847 of May 17, 1993, 58 FR 29511 (1993), Executive Order 13284 of January 23, 2003, 68 FR 4075 (2003), and Executive Order 13337 of April 30, 2004, 69 FR 25299 (2004) and Department of State Delegation of Authority number 118-2 of January 26, 2006; having considered the environmental effects of the proposed action consistent with the National Environmental Policy Act of 1969, as amended (83 Stat. 852, 42 U.S.C. 4321
The term “facilities” as used in this permit means the facilities to be constructed at the Nogales-Mariposa border crossing near Nogales, Arizona, consisting of the following improvements and structures:
• Inspection and X-Ray Facilities
• Containment Areas and Docks
• Commercial Inspection Building with Import and Export Docks
• Export Inspection
• Main Administrative Building
• Entry and Exit Control Booths
• Roadways and related Infrastructure, Pathways, Parking Lots, and related Lots
• Landscaping
• Ancillary Support Facilities
• Commercial Cargo lanes
• Non-commercial Inspection facilities and lanes
• Pedestrian Crossing
• Pedestrian inspection facilities
• Related Improvements and Infrastructure
These facilities are the subject of a Finding Of No Significant Impact approved by the State Department Director of the Office of Mexican Affairs, Edward Alexander Lee on December 10, 2010. 75 FR 78336 (December 15, 2010).
This permit is subject to the following conditions:
Article 1. The facilities herein described, and all aspects of their operation, shall be subject to all the conditions, provisions and requirements of this permit and any amendment thereof. This permit may be terminated upon a determination of the Executive Branch that the Nogales-Mariposa border crossing shall be closed. This permit may be amended by the Secretary of State or the Secretary's delegate in consultation with the permittee and, as appropriate, other Executive Branch agencies; the permittee's obligation to implement such an amendment is subject to the availability of funds. The permittee shall make no substantial change in the location of the facilities or in the operation authorized by this permit until such changes have been approved by the Secretary of State or the Secretary's delegate.
Article 2. The permittee shall comply with all applicable federal laws and regulations regarding the construction, operation and maintenance of the facilities. Further, the permittee shall comply with nationally recognized codes to the extent required under 40 U.S.C. 3312(b). The permittee shall cooperate with state and local officials to the extent required under 40 U.S.C. 3312(d).
Article 3. In the event that the Nogales-Mariposa Port of Entry is permanently closed and is no longer used as an international crossing, this permit shall terminate and the permittee may manage, utilize, or dispose of the facilities in accordance with its statutory authorities.
Article 4. The permittee is a federal agency that is responsible for managing and operating the Nogales-Mariposa Port of Entry, as authorized by applicable federal laws and regulations. This permit shall continue in full force and effect for only so long as the permittee shall continue the operations hereby authorized.
Article 5. This Article applies to transfer of the facilities or any part thereof as an operating land border crossing. The permittee shall immediately notify the United States Department of State of any decision to transfer custody and control of the facilities or any part thereof to any other any agency or department of the United States Government. Said notice shall identify the transferee agency or department and seek the approval of the United States Department of State for the transfer of the permit. In the event of approval by the Department of State of such transfer of custody and control to another agency or department of the United States Government, the permit shall remain in force and effect, and the facilities shall be subject to all the conditions, permissions and requirements of this permit and any amendments thereof. The permittee may transfer ownership or control of the facilities to a non-federal entity or individual only upon the prior express approval of such transfer by the United States Department of State, which approval may include such conditions, permissions and requirements that the Department of State, in its discretion, determines are appropriate and necessary for inclusion in the permit, to be effective on the date of transfer.
Article 6. (1) The permittee or its agent shall acquire such right-of-way grants or easements and permits as may become necessary and appropriate.
(2) The permittee shall maintain the facilities and every part thereof.
Article 7. (1) The permittee shall take or cause to be taken all appropriate measures to prevent or mitigate adverse environmental impacts or disruption of significant archeological resources in connection with the construction, operation and maintenance of the facilities, including those mitigation measures adopted by the permittee in connection with issuance of the FONSI.
(2) Before issuing the notice to proceed for construction, the permittee shall obtain the concurrence of the U.S. Section of the International Boundary and Water Commission.
Article 8. The permittee shall comply with all agreed actions and obligations set forth in the FONSI.
Article 9. The permittee shall file any applicable statements and reports that might be required by applicable federal law in connection with this project.
Article 10. The permittee shall not issue a notice to proceed for construction work until the Department of State has provided notification to the permittee that the Department has completed its exchange of diplomatic notes with the Government of Mexico regarding authorization of construction. The permittee shall provide written notice to the Department of State at such time as the construction authorized by this permit is begun, and again at such time as construction is completed, interrupted for more than ninety days or discontinued.
Article 11. This permit is not intended to, and does not, create any right, benefit, or trust responsibility, substantive or procedural, enforceable at law or in equity, by any party against the United States, its departments, agencies, instrumentalities or entities, its officers or employees, in their individual or official capacities, or any other person.
End Permit text.
Notice is hereby given that the Department of State received on January 31, 2011, a report commissioned by the Department of Energy entitled “Keystone XL Assessment.” The report examines the possible effect of the proposed Keystone XL Pipeline on U.S. and global oil markets. We will consider this report, as well as contributions from the public and other interested agencies, in our decision-making process on TransCanada Keystone Pipeline, LP's (TransCanada) application for a Presidential permit for the Keystone XL Project. We will be requesting public comment on this report at an appropriate time. The report is available under “Petroleum Market Impacts of the Keystone XL Pipeline Project” on the “State Dept. Documents” page of our Web site at
On September 19, 2008, TransCanada filed an application for a Presidential permit for the construction, operation, and maintenance of pipeline facilities at the border of the U.S. and Canada for the transport of crude oil across the U.S.-Canada international boundary. The Secretary of State is designated and empowered to receive all applications for Presidential permits, under Executive Order 13337, as amended, for the construction, connection, operation, or maintenance, at the borders of the United States, of facilities for the exportation or importation of petroleum, petroleum products, coal, or other fuels to or from a foreign country. TransCanada has requested authorization to construct and operate border crossing facilities at the U.S.-Canadian border in Phillips County, near Morgan, Montana, in connection with its proposed international pipeline project (the Keystone XL Pipeline Project) that is designed to transport Canadian crude oil production from the Western Canadian Sedimentary Basin (WCSB) to destinations in the south central United States, including to an existing oil terminal in Cushing, Oklahoma, and to existing delivery points in the Port Arthur and East Houston areas of Texas.
On April 20, 2010, the State Department published a draft Environmental Impact Statement (EIS) and provided for public comment on that draft EIS until July 2, 2010. The State Department is currently reviewing the comments received in response to that notice and will not make a decision related to the Keystone XL pipeline until it has completed that review. A final decision on whether the Department will approve or not approve the Keystone XL pipeline will only be made after the Department has completed all of its review processes.
The Department of State will be requesting public comment on this report at an appropriate time.
For information regarding environmental concerns and permitting, contact Alexander Yuan at (202) 647-4284; or by email at
Federal Railroad Administration (FRA), U.S. Department of Transportation (DOT).
Notice of Intent to Prepare an Environmental Impact Statement.
FRA is issuing this notice to advise the public that FRA with the Illinois Department of Transportation (IDOT) will jointly prepare a Tier 1 Environmental Impact Statement (EIS) for the Chicago, IL to St. Louis, MO High Speed Rail Corridor Program in compliance with the National Environmental Policy Act of 1969 (NEPA). This study will analyze a range of reasonable corridor-level route alternatives between Chicago and Joliet, and will examine additional improvements between Joliet and St. Louis to support additional passenger trains. The EIS will consider increasing the number of frequencies of high-speed passenger rail service, as well as increasing the currently planned maximum speed of such service, in the Chicago to St. Louis Corridor (Corridor). FRA is issuing this notice to solicit public and agency input into the development of the scope of the EIS and to advise the public that outreach activities conducted by FRA and IDOT will be considered in the preparation of the EIS. Alternatives under consideration include taking no action, as well as several build alternatives between Chicago and Joliet, IL, through the City of Springfield, and for the approach to St. Louis, MO.
Two agency scoping meetings and five public scoping meetings will be held during March, 2011. Public scoping meetings will be advertised locally and are scheduled for the following cities on the dates indicated below from 4 p.m.-7 p.m.
• March 1, 2011: Joliet, IL
• March 2, 2011: Bloomington-Normal, IL
• March 3, 2011: Springfield, IL
• March 8, 2011: Carlinville, IL
• March 9, 2011: Alton, IL
Agency scoping meetings will be held March 1, 2011 in Joliet, IL and March 3, 2011 in Springfield, IL at 10 a.m. Detailed information on the meeting locations is available on the following Web site:
Written comments on the scope of this study should be sent to Mr. George Weber, Acting Deputy Director, Department of Intermodal and Public Transit, Illinois Department of Transportation, 100 West Randolph Street, Suite 6-600, Chicago, Illinois 60601, telephone (312) 793-4222.
Ms. Wendy Messenger, Office of Railroad Development, Federal Railroad Administration, 1200 New Jersey Avenue, SE., (Mail Stop 20), Washington, DC 20590, telephone (202) 493-6396; or Mr. George Weber, telephone (312) 793-4222 at the above address. Information and documents regarding the environmental review process will be made available through the following Web site:
FRA, in cooperation with IDOT, will prepare a Tier 1 EIS for the High Speed Rail program from Chicago, IL to St. Louis, MO. The objectives of the proposed Project are to meet current and future regional travel needs through significant improvements to the level and quality of passenger rail service along the Corridor. Specifically, the EIS will consider increasing the frequency of high-speed passenger trains between Chicago and St. Louis and will consider increasing train speeds above the 110 mph maximum speed currently planned in the Corridor. The proposed service improvements examined in this EIS will build upon the approximately $1.1 billion of improvements currently being completed in the Corridor by IDOT and FRA pursuant to a grant/cooperative agreement funded by the American Recovery and Reinvestment Act (ARRA) (this work is based upon a 2003 EIS for the Corridor and a 2004 Record of Decision). Those improvements, which include infrastructure improvements, communications and signaling installation, stations improvements, and rolling stock equipment procurement, will increase passenger rail speeds from 79 mph to 110 mph for the existing Corridor services.
The proposed Tier 1 EIS described in this notice will examine a range of reasonable corridor-level alternative routes between Chicago and Joliet, and will examine additional improvements between Joliet and St. Louis to support additional passenger trains while accommodating the anticipated growth in freight rail traffic. The EIS will assess: Changing the existing rail corridor from one track to two tracks; increasing the number of high-speed passenger trains; potential corridor route alternatives between Chicago and Joliet, IL, through the City of Springfield, and for the approach to St. Louis, MO; and the associated transportation and environmental impacts. Train speed increases above the 110 mph maximum speed currently planned in the Corridor may be considered in the alternatives analysis. It is anticipated that the EIS will examine the viability of Chicago-Joliet corridors utilizing the Canadian National (CN) and Metra Rock Island District (RID), as well as other reasonable corridors between Chicago and Joliet that could support high speed rail passenger service.
IDOT and FRA propose to not examine the Norfolk Southern-Canadian National alignment between Dwight and Chicago in the Tier 1 EIS. This alignment was considered in the 2003 EIS for the Corridor to serve a proposed South Suburban Airport. IDOT and FRA propose to not examine this alignment because it would divert intercity passenger rail service from the larger populations currently served in the Chicago-Joliet corridor, and the South Suburban Airport area is served by an existing commuter rail service to Chicago. Additionally, the Norfolk Southern Railroad does not support the introduction of high-speed passenger rail to its facilities because of limited existing infrastructure and a limited ability to expand capacity in the corridor. The agencies have concluded that it is not a reasonable alternative for meeting the Project purpose and need. Elimination of the Norfolk Southern-Canadian National alignment will result in a single corridor to be studied between Dwight and Joliet utilizing the Union Pacific (UP) Railroad.
The No-Build Alternative will represent the no action alternative and will be used as a baseline for comparison of all alternatives. The No-Build Alternative represents other transportation modes, such as auto, air travel, intercity bus, and existing rail, and the physical characteristics and capacities as they exist at the time of the Tier 1 EIS, with planned and funded improvements that will be in place at the time the Project would become operational.
• Confirm the purpose and need for the proposed action.
• Define the study area appropriate to assess reasonable alternatives.
• Identify a comprehensive set of goals and objectives for the corridor in conjunction with Project stakeholders. These goals and objectives will be crafted to allow comprehensive evaluation of all aspects of the Project necessary to achieve the goals, including train operations, vehicles, and infrastructure.
• Identify the range of reasonable alternatives to be considered, consistent with the current and planned use of the corridor and the existing services within and adjacent to the study area, including changing the existing rail corridor from one track to two tracks, considering alternative corridors between Chicago and Joliet and in the St. Louis area, and considering a no action/no build alternative.
• Develop alternatives evaluation criteria to identify alternatives that meet the purpose and need of the proposed action and those that do not.
• Identify the general alignment(s) of the reasonable alternatives.
• Identify right-of-way requirements for the reasonable alternatives.
• Identify the infrastructure and equipment investment requirements for the reasonable alternatives.
• Identify the operational changes required for the reasonable alternatives.
• Describe the environmental impacts associated with the proposed changes in passenger rail train frequency, speed, and on-time performance.
• Characterize the environmental consequences of the reasonable alternatives.
• Establish the timing and sequencing of independent actions to maintain a state of good repair and to implement the proposed action.
• Evaluate and consider the potential for environmental impacts associated with the reasonable alternatives.
• Identify a preferred alternative for corridor route alignment.
• Address component projects for Tier 2 NEPA documentation as described below.
There are currently three north-south railroad corridors through Springfield. Generally, these corridors exist along Third Street (Union Pacific), Tenth Street (primarily Norfolk Southern), and Nineteenth Street (primarily Canadian National). There are 73 at-grade crossings along these three corridors in the study area, which create traffic congestion and safety issues when trains traverse the city. The Union Pacific Railroad is constructing a new intermodal rail yard near Joliet, Illinois, which is anticipated to generate increased freight traffic on the Third Street corridor. The combination of increased passenger trains and increased Union Pacific freight trains would likely require a second track on the Third Street corridor to accommodate the greater number of trains per day.
Build alternatives to accommodate this increase in rail traffic will be studied. In addition, the No-Build Alternative will represent the no action alternative and will be used as a baseline for comparison of all alternatives. One build alternative involves adding a second track on the Third Street corridor to handle up to 40 freight and passenger trains per day. Another build alternative will consider moving the Third Street corridor trains, and possibly the Nineteenth Street corridor trains, to the Tenth Street corridor, where additional tracks would be built, which would consolidate Springfield's rail traffic into one corridor. Other reasonable alternatives will also be considered, such as relocating rail traffic to other or new corridors.
The Chicago Region Environmental and Transportation Efficiency Program (CREATE) is a cooperative effort between the U.S. Department of Transportation, the State of Illinois, the City of Chicago, the Metropolitan Rail Corporation (Metra), the National Railroad Passenger Corporation (Amtrak), and six freight railroads to improve freight and passenger rail efficiency and to reduce rail/highway traffic conflicts. There are six projects specifically identified by CREATE (P1, P2, P3, EW2, P5 and P6) that may involve and affect high speed rail service within the Chicago-Joliet portion of the corridor, depending on the corridor recommendations of this EIS study. More information is available at the CREATE Web site at
The Chicago-St. Louis 220 mph High Speed Rail Express is a project concept being pursued by IDOT. This service, at speeds up to 220 mph, may utilize existing rail corridors, a new corridor, or a combination of both, and could serve different travel markets. The 220 mph concept is intended as a complementary service to the Chicago-St. Louis high speed rail service that is being evaluated by this EIS. A feasibility study was prepared in 2009 by the Midwest High Speed Rail Association; this study indicated that a completely grade-separated route could be established by modifying existing rail corridors to connect Chicago, Champaign, Decatur and Springfield, Illinois with St. Louis, Missouri, with a one-way terminal-to-terminal trip time of approximately two hours, utilizing a maximum speed of 220 mph. Also in 2009, an Expression of Interest was prepared by the French National Railways (SNCF) in response to the FRA's Request for Expression of Interest dated December 11, 2008. The SNCF proposed a high-speed rail route to be located adjacent to existing rail corridors and sharing existing rail corridors in urban approaches at lower speeds. IDOT intends to further study the 220 mph project concept, including
The Midwest Regional Rail Initiative (MWRRI) is an effort led by the Wisconsin Department of Transportation and supported by eight other Midwestern States to upgrade Amtrak service in those States, with maximum speeds of 79 to 110 mph depending on the level of improvements made. A Chicago-St. Louis corridor is included in MWRRI's September 2004 Executive Report and November 2006 Benefit Cost and Economic Analysis. Additional corridors proposed by MWRRI include: Chicago-Green Bay, Wisconsin; Chicago-Minneapolis, Minnesota; St. Louis-Kansas City, Missouri; Chicago-Cincinnati, Ohio; Chicago-Cleveland, Ohio; Chicago-Detroit, Michigan; Chicago-Port Huron, Michigan; Chicago-Carbondale, Illinois; Chicago-Quincy, Illinois; and Chicago-Omaha, Nebraska. Several other feeder corridors connecting smaller municipalities to the primary corridors are also included. More information is available at
To ensure that the full range of issues related to this proposed action are addressed and that all significant issues are identified, comments and suggestions are invited from all interested parties. Comments or questions concerning this proposed action and the EIS should be directed to IDOT or FRA at the addresses provided above.
FRA is seeking participation and input of all interested Federal, State, and local agencies, Native American groups, and other concerned private organizations and individuals on the scope of the EIS. This Project is a federal undertaking with the potential to affect historic properties. As such, it is subject to the requirements of section 106 of the National Historic Preservation Act of 1966 (NHPA) (16 U.S.C. 470(f)). In accordance with regulations issued by the Advisory Council on Historic Preservation, 36 CFR part 800, FRA intends to coordinate compliance with section 106 of the NHPA with the preparation of the EIS, beginning with the identification of consulting parties through the scoping process, in a manner consistent with the standards set out in 36 CFR 800.8.
National Highway Traffic Safety Administration, DOT.
Notice.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Comments must be submitted on or before March 16, 2011.
Send comments, within 30 days, to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725-17th Street, NW., Washington, DC 20503, Attention NHTSA Desk Officer.
Ms. Deborah Mazyck at the National Highway Traffic Safety Administration, Office of International Policy, Fuel Economy and Consumer Programs, 1200 New Jersey Avenue, SE., West Building, Room W43-443, Washington, DC 20590. Ms. Mazyck's telephone number is (202-366-4139).
NHTSA anticipates approximately 22 vehicle manufacturers will be affected by these reporting requirements. NHTSA does not believe that any of these 22 manufacturers are a small business (
There is a decrease in the annual reporting and recordkeeping hour burden from 55,484 to 52,962 because the number of respondents decreased from 22 to 21. There is a decrease in annual reporting and recordkeeping cost burden from $2,467,300 to $2,355,150 because there will be fewer responses. The hour burden and cost burden published in the
National Highway Traffic Safety Administration (NHTSA) Department of Transportation (DOT).
Grant of petition for exemption.
This document grants in full the Mitsubishi Motors R&D of America's (Mitsubishi) petition for exemption of the Outlander Sport vehicle line in accordance with 49 CFR Part 543,
The exemption granted by this notice is effective beginning with the 2012 model year.
Ms. Deborah Mazyck, Office of International Policy, Fuel Economy and Consumer Programs, NHTSA, West Building, W43-443, 1200 New Jersey Avenue, SE., Washington, DC 20590. Ms. Mazyck's phone number is (202) 366-0846. Her fax number is (202) 493-2990.
In a petition dated November 30, 2010, Mitsubishi requested exemption from the parts-marking requirements of the Theft Prevention Standard (49 CFR Part 541) for the Mitsubishi Outlander Sport vehicle line, beginning with MY 2012. The petition requested an exemption from parts-marking pursuant to 49 CFR Part 543,
Under § 543.5(a), a manufacturer may petition NHTSA to grant an exemption for one vehicle line per model year. In its petition, Mitsubishi provided a detailed description and diagram of the identity, design, and location of the components of the antitheft device for the Outlander Sport vehicle line. Mitsubishi will install a passive, transponder-based, electronic engine immobilizer device as standard equipment on its Outlander Sport vehicle line beginning with MY 2012. Features of the antitheft device will include a transponder key, electronic control unit (ECU), and a passive immobilizer. Mitsubishi will also incorporate an audible and visual alarm system as standard equipment on all trimline vehicles. Mitsubishi's submission is considered a complete petition as required by 49 CFR 543.7, in that it meets the general requirements contained in 543.5 and the specific content requirements of 543.6.
Mitsubishi stated that its entry models for the Outlander Sport vehicle line will be equipped with a Wireless Control Module (WCM). Mitsubishi stated that this is a keyless entry system in which the transponder is located in a traditional key that must be inserted into the key cylinder in order to activate the ignition. All other models of the Outlander Sport vehicle line are equipped with a One-touch Starting System (OSS), which utilizes a keyless system that allows the driver to press a button located on the instrument panel to activate and deactivate the ignition (instead of using a traditional key in the key cylinder) as long as the transponder is located in close proximity to the driver. Mitsubishi stated that the performance of the immobilizer will be the same in all models whether the vehicle has a WCM or OSS entry system. Mitsubishi further stated that the only difference between the two keyless entry systems is the “key” and the method used to transmit the information from the key to the immobilizer.
Once the ignition switch is pushed to the “on” position, the transceiver module reads the specific ignition key code for the vehicle and transmits an encrypted message containing the key code to the electronic control unit (ECU). The immobilizer receives the key code signal transmitted from either type of key (WCM or OSS) and verifies that the key code signal is correct. The immobilizer then sends a separate encrypted start-code signal to the engine ECU to allow the driver to start the vehicle. The engine only will function
In addressing the specific content requirements of 543.6, Mitsubishi provided information on the reliability and durability of its proposed device. To ensure reliability and durability of the device, Mitsubishi conducted tests based on its own specified standards. Mitsubishi provided a detailed list of the tests conducted and believes that the device is reliable and durable since the device complied with its specific requirements for each test. Mitsubishi additionally stated that its immobilizer system is further enhanced by several factors making it very difficult to defeat. Specifically, Mitsubishi stated that communication between the transponder and the ECU are encrypted. The WCM has over 4.2 billion and the OSS has over 2.4 million different possible key codes that make successful key code duplication virtually impossible. Mitsubishi also stated that its immobilizer system and the ECU share security data during vehicle assembly that make them a matched set. These matched modules will not function if taken out and reinstalled separately on other vehicles. Mitsubishi also stated that it is impossible to mechanically override the system and start the vehicle because the vehicle will not be able to start without the transmission of the specific code to the electronic control module. Lastly, Mitsubishi stated that the antitheft device is extremely reliable and durable because there are no moving parts, nor does the key require a separate battery.
Mitsubishi informed the agency that the Outlander Sport vehicle line was first equipped with the proposed device beginning with its MY 2011 vehicles. Additionally, Mitsubishi informed the agency that its Eclipse vehicle line has been equipped with the device beginning with its MY 2000 vehicles. Mitsubishi stated that the theft rate for the MY 2000 Eclipse decreased by almost 42% when compared with that of its MY 1999 Mitsubishi Eclipse (unequipped with an immobilizer device). Mitsubishi also revealed that the Galant, Endeavor, Outlander and Lancer vehicle lines have been equipped with a similar type of immobilizer device since January 2004, April 2004, September 2006 and March 2007 respectively. The Mitsubishi Galant, Endeavor, Outlander and Lancer vehicle lines have all been granted parts-marking exemptions by the agency and the average theft rates using 3 MY's data are 4.8061, 2.5410, 0.9507 and 3.1547 respectively. Therefore, Mitsubishi has concluded that the antitheft device proposed for its vehicle line is no less effective than those devices in the lines for which NHTSA has already granted full exemption from the parts-marking requirements.
Based on the supporting evidence submitted by Mitsubishi on the device, the agency believes that the antitheft device for the Outlander Sport vehicle line is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the parts-marking requirements of the Theft Prevention Standard (49 CFR Part 541). The agency concludes that the device will provide the five types of performance listed in § 543.6(a)(3): Promoting activation; attract attention to the efforts of an unauthorized person to enter or move a vehicle by means other than a key; preventing defeat or circumvention of the device by unauthorized persons; preventing operation of the vehicle by unauthorized entrants; and ensuring the reliability and durability of the device.
Pursuant to 49 U.S.C. 33106 and 49 CFR 543.7(b), the agency grants a petition for an exemption from the parts-marking requirements of Part 541 either in whole or in part, if it determines that, based upon substantial evidence, the standard equipment antitheft device is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the parts-marking requirements of Part 541. The agency finds that Mitsubishi has provided adequate reasons for its belief that the antitheft device for the Mitsubishi Outlander Sport vehicle line is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the parts-marking requirements of the Theft Prevention Standard (49 CFR Part 541). This conclusion is based on the information Mitsubishi provided about its device.
For the foregoing reasons, the agency hereby grants in full Mitsubishi's petition for exemption for the Outlander Sport vehicle line from the parts-marking requirements of 49 CFR Part 541, beginning with the 2012 model year vehicles. The agency notes that 49 CFR Part 541, Appendix A-1, identifies those lines that are exempted from the Theft Prevention Standard for a given model year. 49 CFR Part 543.7(f) contains publication requirements incident to the disposition of all Part 543 petitions. Advanced listing, including the release of future product nameplates, the beginning model year for which the petition is granted and a general description of the antitheft device is necessary in order to notify law enforcement agencies of new vehicle lines exempted from the parts-marking requirements of the Theft Prevention Standard.
If Mitsubishi decides not to use the exemption for this line, it must formally notify the agency. If such a decision is made, the line must be fully marked as required by 49 CFR 541.5 and 541.6 (marking of major component parts and replacement parts).
NHTSA notes that if Mitsubishi wishes in the future to modify the device on which this exemption is based, the company may have to submit a petition to modify the exemption. Part 543.7(d) states that a Part 543 exemption applies only to vehicles that belong to a line exempted under this part and equipped with the antitheft device on which the line's exemption is based. Further, § 543.9(c)(2) provides for the submission of petitions “to modify an exemption to permit the use of an antitheft device similar to but differing from the one specified in that exemption.”
The agency wishes to minimize the administrative burden that § 543.9(c)(2) could place on exempted vehicle manufacturers and itself. The agency did not intend Part 543 to require the submission of a modification petition for every change to the components or design of an antitheft device. The significance of many such changes could be
49 U.S.C. 33106; delegation of authority at 49 CFR 1.50.
Pipeline and Hazardous Materials Safety Administration (PHMSA), U.S. Department of Transportation (DOT).
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Send comments regarding the burden estimate, including suggestions for reducing the burden, to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attn: Desk Officer for DOT/PHMSA, 725 17th Street, NW., Washington, DC 20503.
Interested persons are invited to submit comments on or before March 16, 2011.
Angela Dow by telephone at 202-366-1246, by e-mail at
Comments are invited on: The need for the proposed collection of information for the proper performance of the functions of the agency, including whether the information will have practical utility; the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques. A comment to OMB is most effective if OMB receives it within 30 days of the date of publication in the
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; and 49 CFR part 1.
Department of Veterans Affairs.
Notice of public availability of FY 2010 service contract inventories.
In accordance with Section 743 of Division C of the Consolidated Appropriations Act of 2010 (Pub. L. 111-117), Department of Veterans Affairs (VA) is publishing this notice to advise the public of the accessibility of VA's FY 2010 service contract inventory available at
Questions regarding the service contract inventory should be directed to Marilyn Harris, Director of Acquisition Policy, Office of Acquisition and Logistics (Policy 001AL-P2) at 202-461-6929 or
Rural Business-Cooperative Service and Rural Utilities Service, USDA.
Interim rule with request for comments.
This interim rule establishes a guaranteed loan program for the development and construction of commercial-scale biorefineries and for the retrofitting of existing facilities using eligible technology for the development of advanced biofuels.
This interim rule is effective March 16, 2011. Comments must be received on or before April 15, 2011.
You may submit comments to this rule by any of the following methods:
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All written comments will be available for public inspection during regular work hours at the 300 7th Street, SW., 7th Floor address listed above.
Kelley Oehler, Energy Branch, Biorefinery Assistance Program, U.S. Department of Agriculture, 1400 Independence Avenue, SW., Stop 3225, Washington, DC 20250-3201; telephone (202) 720-6819. E-mail:
This interim rule has been reviewed under Executive Order (EO) 12866 and has been determined to be economically significant by the Office of Management and Budget. The EO defines a “significant regulatory action” as one that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this EO.
The Agency conducted a benefit-cost analysis to fulfill the requirements of Executive Order 12866. In this analysis, the Agency identified potential benefits and costs of the Biorefinery Assistance Guaranteed Loan Program to lenders, borrowers, and the Agency. The analysis contains both quantitative estimates and qualitative descriptions of the expected benefits and costs of the Biorefinery Assistance Guaranteed Loan Program. The environmental and energy impacts associated with the Biorefinery Assistance Guaranteed Loan Program were qualitatively assessed.
Title II of the Unfunded Mandates Reform Act 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, Rural Development generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, or tribal governments, in the aggregate, or to the private sector of $100 million or more in any one year. When such a statement is needed for a rule, section 205 of the UMRA generally requires Rural Development to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, more cost-effective, or least burdensome alternative that achieves the objectives of the rule.
This interim rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, and tribal governments or the private sector. Thus, this rule is not subject to the requirements of sections 202 and 205 of the UMRA.
This renewable energy program under Section 9003 of the Farm Security and Rural Investment Act of 2002 (FSRIA) (as amended by Section 9001 of the Food, Conservation, and Energy Act of 2008 (2008 Farm Bill)) has been operating on an interim basis through the issuance of a Notice of Funds Availability (NOFA). During this initial round of applications, the Agency conducted National Environmental Policy Act (NEPA) reviews on each individual application for funding. No significant environmental impacts were reported, and Findings of No Significant Impact (FONSI) were issued for each approved application. Taken collectively, the applications show no potential for significant adverse cumulative effects.
The Agency has prepared a programmatic environmental assessment (PEA), pursuant to 7 CFR part 1940, subpart G, analyzing the environmental effects to air, water, and biotic resources; land use; historic and cultural resources; and greenhouse gas emissions affected by the Biorefinery Assistance Guaranteed Loan Program proposed rule. The purpose of the PEA is to assess the overall environmental impacts of the programs related to the Congressional goal of advancing biofuels production for the purposes of energy independence and greenhouse gas emission reductions. The impact analyses are national in scope, but draw upon site-by-site analysis for each application to the program. Site-specific NEPA documents prepared for those facilities funded under Sections 9003 and 9004 of the FSRIA in FY 2008 and/or 2009 were utilized, as well, to forecast likely impacts under the interim rule. The draft PEA was made available to the public for comment on the USDA Rural Business-Cooperative Service's Web site on May 3, 2010. No comments were received on the draft PEA, and the Agency is preparing to publish a Finding of No Significant Impact (FONSI) for the program.
This interim rule has been reviewed under Executive Order 12988, Civil Justice Reform. In accordance with this rule: (1) All State and local laws and regulations that are in conflict with this rule will be preempted; (2) no retroactive effect will be given this rule; and (3) administrative proceedings in accordance with the regulations of the Department of Agriculture's National Appeals Division (7 CFR part 11) must be exhausted before bringing suit in
It has been determined, under Executive Order 13132, Federalism, that this interim rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. The provisions contained in the rule will not have a substantial direct effect on States or their political subdivisions or on the distribution of power and responsibilities among the various government levels.
The Regulatory Flexibility Act (5 U.S.C. 601-612) (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have an economically significant impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
In compliance with the RFA, Rural Development has determined that this action will not have an economically significant impact on a substantial number of small entities. The burden for applying for a Biorefinery Assistance Guaranteed Loan Program loan to any one borrower is estimated to be less than 0.1 percent of the estimated cost of the average construction or reconstruction project funded under this program. Further, this regulation only impacts those who choose to participate in the program.
The regulatory impact analysis conducted for this interim rule meets the requirements for Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use, Executive Order No. 13211, which states that an agency undertaking regulatory actions related to energy supply, distribution, or use is to prepare a Statement of Energy Effects. This analysis finds that this rule will not have any adverse impacts on energy supply, distribution, or use.
Rural Development guaranteed loans are subject to the Provisions of Executive Order 12372, which require intergovernmental consultation with State and local officials. Rural Development will conduct intergovernmental consultation in the manner delineated in RD Instruction 1940-J, “Intergovernmental Review of Rural Development Programs and Activities,” available in any Rural Development office and on the Internet at
United States Department of Agriculture (USDA) will undertake, within 6 months after this rule becomes effective, a series of regulation Tribal consultation sessions to gain input by elected Tribal officials or their designees concerning the impact of this rule on Tribal governments, communities, and individuals. These sessions will establish a baseline of consultation for future actions, should any be necessary, regarding this rule. Reports from these sessions for consultation will be made part of the USDA annual reporting on Tribal Consultation and Collaboration. USDA will respond in a timely and meaningful manner to all Tribal government requests for consultation concerning this rule and will provide additional venues, such as webinars and teleconferences, to periodically host collaborative conversations with Tribal leaders and their representatives concerning ways to improve this rule in Indian country.
The policies contained in this rule would not have Tribal implications that preempt Tribal law.
The Biorefinery Assistance Guaranteed Loan Program is listed in the Catalog of Federal Domestic Assistance Program under Number 10.865.
The information collection requirements contained in the Notice of Funding Availability for the Section 9003 Biorefinery Assistance Guaranteed Loan Program published on November 20, 2008, were approved by the Office of Management and Budget (OMB) under emergency clearance procedures and assigned OMB Control Number 0570-0055. In accordance with the Paperwork Reduction Act of 1995, the Agency is now seeking standard OMB approval of the reporting requirements contained in this interim rule. In the publication of the proposed rule on April 16, 2010, the Agency solicited comments on the estimated burden. The Agency received one comment in response to this solicitation. This information collection requirement will not become effective until approved by OMB. Upon approval of this information collection, the Agency will publish a rule in the
Once a project has been approved and the loan has been guaranteed, lenders must submit certain reports. Some of these reports are associated with the performance of the lender's loan portfolio and include both periodic reports on the status of that portfolio and, when applicable, monthly default reports. Other reports are associated with individual projects and include quarterly construction reports and, once a project has been completed, annual reports through the life of the guaranteed loan. In addition, lenders are required to conduct annual inspections of each completed project.
The estimated information collection burden hours has not changed from the proposed rule, remaining at 2,920 hours.
Rural Development is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
Rural Development administers a multitude of Federal programs for the benefit of rural America, ranging from housing and community facilities to infrastructure and business development. Its mission is to increase economic opportunity and improve the quality of life in rural communities by providing the leadership, infrastructure, venture capital, and technical support that enables rural communities to prosper. To achieve its mission, Rural Development provides financial support (including direct loans, grants, and loan guarantees) and technical assistance to help enhance the quality of life and provide the foundation for economic development in rural areas.
Section 9003 of the Farm Security and Rural Investment Act of 2002 (FSRIA) (as amended by Section 9001 of the Food, Conservation, and Energy Act of 2008 (2008 Farm Bill)) provides for financial assistance in the form of grants and loan guarantees to assist in the development of new and emerging technologies for the development of advanced biofuels. At this time, Congress has not appropriated any discretionary funding, which would be necessary to fund program grants. Therefore, the interim rule only addresses loan guarantees. If and when funds for grants are appropriated and received by the Agency, it will be necessary for the Agency to promulgate a separate regulation for program grants.
The interim rule establishes the Biorefinery Assistance Guaranteed Loan Program to provide loan guarantees for the development, construction, or retrofitting of commercial biorefineries using eligible technology, where eligible technology is defined as:
(a) Any technology that is being adopted in a viable commercial-scale operation of a biorefinery that produces an advanced biofuel, and
(b) any technology not described in paragraph (a) above that has been demonstrated to have technical and economic potential for commercial application in a biorefinery that produces an advanced biofuel.
On April 16, 2010 [75 FR 20044], the Agency published a proposed rule for the Biorefinery Assistance Guaranteed Loan Program. Comments were requested on the proposed rule, which are summarized in Section III of this preamble. Most of the proposed rule's provisions have been carried forward into 7 CFR part 4279, subpart C, and 7 CFR part 4287, subpart D, although there have been several significant changes. Changes to the proposed rule are summarized in Section II of this preamble.
This section presents changes from the April 16, 2010, proposed rule. Most of the changes were the result of the Agency's consideration of public comments on the proposed rule. Some changes, however, are being made to clarify proposed provisions. Unless otherwise indicated, rule citations refer to those in the interim rule.
The following highlight significant changes to the rule:
• Revised the maximum percent guarantee provisions, including adding provisions to allow for a 90 percent guarantee for loan amounts of $125 million or less under certain conditions.
• Added refinancing as an eligible project purpose under certain conditions.
• Removed location in a rural area as a requirement for project eligibility; however, it is included in a scoring criterion in order to receive points for that criterion.
• Removed the citizenship requirement for borrowers.
• Revised the minimum retention requirement to 7.5 percent of total loan amount.
A number of definitions were added, revised, or removed.
The Agency added one definition:
“Biobased product” was added in order to further clarify the biorefinery definition.
The Agency revised several definitions as follows:
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Lastly, the Agency revised several definitions associated with capital ratios to refer to the Federal Deposit Insurance Corporation regulations in general.
The Agency removed several definitions—Agency, byproduct, future recovery, immediate family, regulated or supervised lender, and surety.
• The term “Agency” was removed from the definitions because it is defined in § 4279.2 and does not need to be repeated in the interim rule.
• The term “future recovery” was removed because the term is not used in the interim rule.
• The term “immediate family” was removed because the term was only used for the citizenship requirement, which has been removed. Thus, the term is no longer used in the rule.
• The term “regulated or supervised lender” was removed because of the revision made to identify eligible lenders.
• The specific definition for the term “surety” was removed; the rule now refers to how the term is commonly used in the industry.
The Agency modified § 4279.202(c)(1) to make the definition of eligible lender similar, but not identical, to the definition of traditional lender in the Business and Industry Guaranteed Loan Program. The Agency notes that, under the interim rule, savings and loan associations, mortgage lenders, and other lenders (those that are not regulated lenders) are not eligible to participate in this program.
The Agency modified the rule to require that the lender meet acceptable levels of capital at the time of application and at the time of issuance of loan note guarantee, thereby removing the requirement of maintaining acceptable capital levels at all times.
The Agency also clarified that, if the information to calculate these levels of capital is not identified in the Call Reports or Thrift Financial Reports, the lender will be required to calculate these levels and provide them to the Agency.
Lastly, the Agency added a provision addressing lenders that are under a cease and desist order from a Federal agency. In such instances, the Agency will evaluate the lender's eligibility on a case-by-case basis given the risk of loss posed by the cease and desist order.
The Agency revised “$100,000” to “$125,000,000.”
The Agency revised the rule to indicate that both the guaranteed and unguaranteed portions of the entire loan must be secured by a first lien and that the Agency may consider a subordinate lien position on inventory and accounts receivable for working capital loans if certain conditions are met.
The Agency also clarified that the lender remains bound by all obligations under the loan note guarantee, Lender's Agreement, and Agency program regulations even if all or a portion of the loan note guarantee has been sold to a holder.
Lastly, the Agency incorporated provisions associated with rights and liabilities specific to this program, rather than relying on the corresponding provisions in the Business and Industry Guaranteed Loan program found at § 4279.72(b), to clarify that having a holder purchase part of the loan note guarantee does not increase the coverage provided to the lender under the loan note guarantee.
The Agency revised the sale or assignment provisions to rely solely of the sale or assignment provisions of the Business and Industry Guaranteed Loan program found at § 4279.75.
The Agency revised the minimum retention provisions to rely on the minimum retention provisions of the Business and Industry Guaranteed Loan program found at § 4279.77, except that the lender is required to hold 7.5 percent (rather than 5 percent) of the total loan amount in its own portfolio.
As proposed, projects in excess of $1 million that would likely result in the transfer of jobs from one area to another and increase direct employment by more than 50 employees and projects in excess of $1 million that would increase direct employment by more than 50 employees, if the project would result in an increase in the production of goods for which there is not sufficient demand, or if the availability of services or facilities is insufficient to meet the needs of the business, would have been ineligible purposes, as they are in the Business and Industry Guaranteed Loan program. The Agency has removed these types of projects as ineligible; that is, such projects would be eligible for a guaranteed loan under this program. The Agency has determined that to continue excluding such projects is unnecessary for this program because the program's primary focus is on the development of renewable energy technologies and not on job creation.
The Agency removed the cross-reference to the Business and Industry Guaranteed Loan program and replaced it with provisions specific to this program. The only substantive change is the elimination of reference to the option to lower the guarantee fee to 1 percent, which was never intended to be part of this program.
The Agency has added provisions that allow it to adjust the guarantee fee and the annual renewal fee through the publication of a
The Agency has added a 3 percent guarantee fee for loans with a 90 percent guarantee.
The Agency removed the citizenship requirement. In addition, the Agency clarified that the borrower must have or obtain legal authority prior to loan closing.
Changes made to project eligibility include:
• Replacing the requirement that the project must be located in a rural area with the requirement that the project must be located in a State. Note that the project must be located in a rural area to receive points under the “potential for rural economic development” scoring criterion.
• Clarifying that the project must use an eligible feedstock for the production of advanced biofuels and biobased products (at proposal, only advanced biofuels was identified) to be consistent with the authorizing legislation.
• Revising the proposed requirement that “more than 70 percent of the revenue generated by the biorefinery must be from the sale of advanced biofuel” to now require that the majority of the production generated by the biorefinery must be advanced biofuels. If the biorefinery produces biobased products and, if applicable, byproduct(s) with an established BTU content, majority biofuel production will be based on BTU content of the advanced biofuel, the biobased product, and byproduct. Alternatively, if there is no established BTU value for the biobased product or the byproduct produced, then majority biofuel production would be based on output volume of the advanced biofuel, the biobased product, and, if applicable, the byproduct.
• Adding a provision that the advanced biofuel must be sold as a biofuel unless otherwise approved by the Agency and determined to be in the best financial interests of the government.
• Revising the rule to include any organic matter that is available on a renewable or recurring basis from non-Federal land or eligible tribal land, including municipal solid waste consisting of renewable biomass, biosolids, treated sewage sludge, and byproducts of the pulp and paper industry, as eligible feedstock.
• Clarifying that an advanced biofuel that is converted to another form of energy for sale will still be considered an advanced biofuel.
The Agency has made several changes in this section, including:
• Clarifying that the borrower needs to provide the remaining 20 percent from other non-Federal sources to complete the project.
• Revising the loan guarantee amounts associated with the maximum percent guarantees;
• Allowing a maximum guarantee of 90 percent for loan requests of $125 million or less and identifying the conditions under which the Agency may issue a 90 percent guarantee.
• Adding a provision that loans made with the proceeds of any obligation the interest on which is excludable from income under the Internal Revenue Code are ineligible.
The Agency moved this provision to the servicing section and corrected the cross-reference (from § 4279.123 to § 4287.123).
In addition to removing the proposed provisions associated with blended rates and the 1 percent interest rate cap from the interim rule, the Agency has significantly revised this section to now rely on the interest provisions found in the Business and Industry Guaranteed Loan program at § 4279.125, with several exceptions:
• The rate on the unguaranteed portion of the loan cannot exceed the rate on the guaranteed portion of the loan by more than 500 basis points;
• Variable rate loans will not provide for negative amortization nor will they give the borrower the ability to choose its payment among various options; and
• Both the guaranteed and unguaranteed portions of the loan must be amortized over the same term.
In addition, the interest rates provisions found in the Business and Industry Guaranteed Loan program at § 4287.112 also apply to this program.
The maximum repayment period has been revised from “20 years or 85 percent of the useful life of the project, as determined by the Agency, whichever is less” to “20 years or the useful life of the project, as determined by the lender and confirmed by the Agency, whichever is less.”
The Agency also removed the cross-reference to § 4279.126(d) and inserted corresponding text specific to this program (see § 4279.232(d)).
The Agency made several changes to the provisions for demonstrating the borrower's equity. One change allows equipment and qualified intellectual project (in addition to real property as was proposed) to be used to meet the equity requirement, but clarifying that this provision applies to only existing biorefineries and not to new biorefineries. In addition, the Agency clarified that equity cannot include other direct Federal funding.
The Agency clarified that the project equity must be demonstrated at the time the loan is closed.
With regard to collateral, the Agency added provisions that it may consider, for both existing and new biorefineries, the value of qualified intellectual property, arrived at in accordance with GAAP standards and subject to discounting. The value of intellectual property may not exceed 30 percent of the total value of all collateral.
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The lender is now required to certify that “the lender concludes that the project has technical merit” rather than certify that “the project is able to demonstrate technical merit.”
The Agency revised the date it will score each completed application it receives from June 1 to May 1 in the fiscal year in which the application is received.
The Agency also made numerous changes to the criteria it will use to score applications. These changes are summarized in the following table. Note that only criteria that were changed are shown in the table.
The Agency modified when it will rank applications and when applications are due for each of the two rankings. The Agency also modified slightly the process that will be used to rank applications, which includes allowing an application to be competed in two consecutive competitions. This has the effect of allowing applications submitted during the second application period of a fiscal year to be carried over to the next fiscal year. Conforming changes were made in the section addressing ranked applications not funded.
The Agency added to the introductory text that the lender can request the guarantee prior to construction, but must still certify to all conditions in this section. The Agency also added a new requirement that the lender certify that the borrower has provided the equity in the project identified in the conditional commitment.
The Agency added a requirement to report on the actual amount of biobased product and, if applicable, byproducts produced.
The Agency is allowing the financial statements to be submitted within 180 days rather than the 120 days required under § 4287.107(d).
The Agency made a conforming change in § 4287.307(d) that, for working capital loans, the Agency may consider a subordinate lien provided it is consistent with the conditional provisions specified in § 4279.202(i)(1).
The Agency determined that the interest rate adjustment provisions of § 4287.112(a)(2) should not apply to this program and has revised the rule to exclude those provisions.
As noted earlier, the Agency moved the provisions concerning subordination of lien position to this section (see § 4287.307(g)).
The Agency revised the transfer and assumption provisions to cross-reference this rule rather than the Business and Industry Guaranteed Loan rule.
The Agency revised the default by borrower provisions by removing the cross-reference to the corresponding Business and Industry Guaranteed Loan program provisions and inserting text specific to this program. This change was made to correct an incorrect cross-reference.
The Agency revised the liquidation provisions to correct an incorrect cross-reference in § 4287.157(d)(13) concerning appraisals.
Prior to this interim rule, applications were processed and guaranteed loans were serviced according to the provisions in the November 20, 2008 (73 FR 70544), March 12, 2010 (75 FR 11840), or the May 6, 2010 (75 FR
The proposed rule was published in the
One commenter states that the application requirements, which appear to be rather lengthy and burdensome, contain elements that should be required by any prudent commercial loan committee reviewing the loan itself. The commenter believes a preapplication process for the program will only be of benefit to lenders and borrowers if it includes a sign-off by the Agency as to completeness of the application. The commenter believes it would be a waste of time to review a project for acceptability and then review it again for guarantee issuance; the review of a partial and then complete application would only serve to slow down a process that we are seeking to expedite.
One commenter believes that a preapplication process would only add another step in the program and would not further the intent and effectiveness of the program. Similarly, another commenter states that a preapplication should not be required as it increases the burden of required paperwork.
One commenter recommends that, rather than preapplications, specialists be available to assist in evaluating how a given project application would likely score against the program criteria.
One commenter encourages the Agency to consider a pre-application process similar to the two-phase process employed by the Department of Energy in its current solicitation (DE-FOA-0000140) for Title XVII loan guarantees, the lack of which the commenter identifies as an obstacle for applying for assistance. This process would be beneficial to the extent the “preapplication process” is similar to the two-phase process that the U.S. Department of Energy (DOE) is using in its current solicitation for Title XVII loan guarantees. Requiring less than a “full-blown” application in Phase I so that the Agency can determine eligibility and “invite” those applicants with a reasonable likelihood of success to apply in Phase II would relieve some burdens from applicants. Phase I could include a basic application, a letter commitment from the borrower to pursue Phase II if invited to apply and the applicant (lender) to lend a specified amount to the project if the Agency agrees to guarantee the loan (subject to other customary conditions precedent), along with an overview of the project reflective of the scoring criteria. This would reduce the level of diligence that lenders would have to conduct for Phase I and shift this diligence to Phase II when the success of an application is more likely. This may entice additional qualified lenders to participate and result in the Agency receiving more Phase I applications. A phased application process would also reduce the burden on the borrower, who, prior to issuance of the loan (or a greater likelihood as evidenced by an invitation to submit a Phase II application), may choose not to apply and instead allocate limited personnel resources to other tasks.
The commenter recommends phasing in applications in two parts as follows:
Part I (Pre-application)—The investment bank representing the project submits an application (similar to the current application) along with the project company. The Part I application contains the level of due diligence required by the Agency and gives the Agency comfort that an accredited, U.S. Securities and Exchange Commission (SEC)-regulated entity is representing the project and attesting to the project's attributes and risks. The Agency reviews that application and makes a determination, based on its review, whether a project should receive a “Letter of Intent” to proceed to Part II.
Part II—Once a Letter of Intent is issued, the project then seeks a lender for the guaranteed portion of the debt and a lender/investor for the unguaranteed portion of the debt. The latter is going to be the key participant and the one who will conduct a significant amount of due diligence to decide whether or not to take the risk on investing/lending for the unguaranteed portion of the debt. The result of that due diligence and a decision to invest should then be submitted to the Agency as a Part II “application,” which is really more of a collection of due diligence findings. The company and the original investment bank could even certify as to its accurateness and then the Agency can review that final deliverable prior to issuing a guarantee and closing the transaction.
The commenter recognizes that a potential Agency concern is that the appropriate level of due diligence would not be conducted unless a lender is on the hook for some portion of the unguaranteed portion of the loan. However, the fact that there is an unguaranteed note means that an investor or lender will do a tremendous amount of due diligence prior to agreeing to lend/invest in the unguaranteed portion, which is a condition precedent for the Agency to issue a final loan guarantee and close a deal. If the Agency's concern is that proper due diligence is being done, the Agency should be confident that it will be done prior to the closing of the transaction and the issuance of a loan guarantee, because there is an unguaranteed portion of the debt that has to be placed. But by requiring the “Lender of Record,” as defined to mean the holder of a portion of the unguaranteed debt, to conduct all of that due diligence up front is both unnecessary and unfeasible in this market. To protect the Agency from outstanding conditional commitments, without the ability to close on the guarantee, a 6-month time limit could be placed on submitting a Part II application.
As a matter of practice, the Agency is available to meet with potential borrowers and/or lenders prior to the submittal of an application for a specific project.
The Agency further requires that a formal application be submitted from an eligible lender. From the formal application forward, the eligible lender will be the primary point of contact for the project with the Agency.
One commenter believes that feedstock currently used for the production of food, other on-site energy production, and in other industries should not be diverted to new energy production, and that the current proposal to exclude cellulosic feedstock and “corn kernel starch” is sound and reasonable, and fits within the Agency's guidelines, purpose, and intent.
One commenter recommends allowing byproducts from pulp and paper if they can be upgraded to higher value products compared to power generation, and scoring them equally to other feedstock. Another commenter also recommends that byproducts from the paper and pulp industry be eligible, if the byproducts meet the criteria of not being consumed in a higher value use.
The commenters believe that the public interest is not served by limiting the number and types of technologies that can be used to build biorefineries, or in limiting the types of feedstock that are available for use and can provide an economic benefit to rural America. The commenters urge the Agency to modify the proposed rule to specifically state that municipal solid waste can be used as a feedstock, in conformity with the express intent of the House Conference Report for the 2008 Farm Bill.
One commenter also recommends stating that municipal solid waste can be used as a feedstock and treating municipal solid waste materials as a
One commenter recommends including biosolids, or treated sewage sludge and its byproducts, as an eligible feedstock, and that facilities producing advanced biofuels, solid and liquid, from biosolids be allowed to apply for program funds.
One commenter recommends including all biodegradable solid wastes to further expand the types of feedstock that can be utilized.
One commenter recommends expanding the traditional definition of biomass to take advantage of new technologies that convert additional organic matters into energy—such as biosolids. Such an expanded definition of “renewable biomass” would take account of population growth in our rural communities and the environmental impacts of the traditional methods of biosolids disposal on such rural communities. Additionally, the Agency would be encouraging the recycling and reuse of a substantial renewable organic feedstock—biosolids, further expanding our nation's sources of energy. Specifically, the commenter proposes that the definition of “renewable biomass” be expanded as follows to include: “(iii) Renewable waste materials and byproducts resulting from the treatment of sewage, including biosolids, fats, oils, and grease and other byproducts.”
Similarly, one commenter recommends expanding the definition of “Advanced biofuel” as follows to include: “(iii) Biofuel (solid or liquid) derived from waste material, including crop residue, other vegetative waste material, animal waste, food waste, yard waste, and treated sewage waste, residues and byproducts.” According to the commenter, specifically including biosolids in the definition of “renewable biomass” as an eligible feedstock, and qualifying the definition of “advanced biofuels” to include treated human sewage waste materials, will encourage the wide-spread adoption of sewage-to-energy technologies and further efforts by Congress and the Administration to develop all sources of renewable energy and create jobs in green technologies.
One commenter states there should be no restriction on feedstock used and that the definition of feedstock needs to be expanded to include municipal sludge as an acceptable feedstock. The commenter states that, with the current need and demand for biofuels, it is imperative that there should not be a restriction on the type of feedstock used. In addition to producing advanced biofuels in a sustainable, efficient manner, it is imperative that waste materials be used to produce other advanced products and be utilized in the greatest way to achieve energy production and reduce greenhouse gases (GHG).
The commenter asserts that any fuel derived from algae, whether blue-green, cyanobacteria, or seaweeds, meets the definition of “advanced biofuel” in all respects, perhaps limited only by Section 9001(12)(B). Algae are not corn starch, and it is explicitly included as an example of “renewable biomass.” The commenter would object to any efforts by the Agency or other stakeholders to exclude algae by administrative discretion. This would be contrary to clear Congressional support for the inclusion of algae as “renewable biomass” and, therefore, an eligible feedstock. The commenter believes the Agency views algae as an important feedstock to meeting the mandates imposed by the Renewable Fuel Standard (RFS) as evidenced by the loan guarantee issued to Sapphire Energy in 2009. The commenter applauds the Agency for taking the leading role in supporting the development of the algae industry as a vital sector of the broader agricultural industry poised to play an important role in securing America's energy independence and rural job growth. In sum, the commenter suggests that the Agency resist excluding feedstock as being “eligible” if such feedstock would qualify under section 9003.
Another commenter also encourages the Agency to remain as feedstock-neutral as possible in order to allow the
A third commenter states that the regulations need to provide sufficient flexibility so that the refinery can minimize the cost of its biofeedstock. To accomplish this, it is essential that the rules be feedstock-neutral. The commenter understands that there are as many as 3,200 potential biofeedstock and that the economic viability of a given feedstock is likely to vary significantly by region. The commenter believes it is inappropriate at this stage to single out one or more specific feedstock or those with specific characteristics that would disqualify their use in a biorefinery supported by the section 9003 program. That decision should be made in concert with the Agency when an application is being evaluated based on all relevant sustainability issues. The commenter also believes that it will be necessary to provide the ability to utilize alternative feedstock on an opportunistic basis in the event that they are economically advantageous to use.
One commenter states that conversion technologies, on a life-cycle basis, are among the cleanest methods available for the production of advanced biofuels and green power.
The Agency is currently considering various models related to life-cycle analysis and has not identified an appropriate model at this time. Should a model be selected by the Agency, the rule will be amended accordingly.
One commenter further states that the siting of biofuel facilities will be dependent on available feedstock, infrastructure, logistics, and other factors. Undoubtedly, many advanced biofuel facilities will be located in rural areas due to feedstock availability. However, to the extent that qualifying renewable biomass is located in other areas, the Agency should not discourage utilization of these resources by excluding non-rural facilities from eligibility for the payments program. Additionally, the scoring criteria in Section 9003(e)(1)(C) also demonstrate that “the potential for rural economic development” is merely one of ten factors that the Agency is directed to consider. While this scheme indicates that Congress intended that the Agency grant some level of preference to rural development, it does not support an interpretation that would preclude the issuance of loans to facilities in non-rural areas. The commenter states that, as with citizenship requirements, if Congress intended that rural development be a prerequisite, it would have explicitly stated so.
One commenter states that the rural location requirement will unfairly exclude biorefineries that make quality fuels, utilize domestic feedstock, and benefit American farmers and their communities. The commenter believes that any biorefinery constructed in the U.S. that provides jobs for U.S. workers and utilizes domestic agricultural feedstock produced by American farmers should be eligible for a loan guarantee under the program. The commenter believes that this was the intent of Congress, and is consistent with the national renewable energy and energy security goals. The commenter recommends removing the proposed rural location requirement in the final rule for biomass grant, loan, and loan guarantee programs.
One commenter states that, given that feedstock availability and reliability is paramount to success, any location that can support a successful project should be allowed, especially if the site was chosen in order to achieve feedstock availability and reliability. The same could be said for off-take agreements if the chosen feedstock can be brought to the proposed site easily, yet the off-take requirements necessitate a non-rural location. For example, for a project with Fisher-Tropsch output to make economic sense, the biorefinery would need to be co-located with an existing fossil fuel refinery, which may not be in a rural area. As another example, in order to have access to the largest possible geography for off-take, if a project must be located in a port facility that is in a non-rural area, this should be equally allowed.
The commenter also states that the program will only succeed in the event that proposed projects can minimize overall risk as much as possible. Project location can have a huge impact on this issue. Rather than citing “consistency with other programs” as a justification for a proposed rule, the criteria should be tailored to the needs of this specific program. In this case, any location that makes it easier to achieve project financing should be allowed without exception. There should be no restrictions on location for this program. It could make sense for a different program targeted at the scale-up of commercially proven technologies, but
One commenter opposes the rural area requirement, stating that biorefineries located in nonrural areas should be eligible. Nowhere in the authorizing legislation for this proposed rule did Congress even suggest that the section 9003 program be limited to rural areas. For the Agency to go outside the statute and make such a recommendation is puzzling at the very least, given the difficulty companies already face in opening biorefineries. The commenter states that the Agency should encourage biorefineries to develop wherever there is market potential, regardless of whether that area is rural, in order to meet the Agency's goal for an overall Federal renewable energy strategy designed to foster the development of a strong, expanding, and sustainable group of renewable energy industries in the U.S. to supply an increasing share of the country's energy needs.
One commenter, while recognizing the importance for the Agency to increase economic opportunity and improve the quality of life in rural communities, cautions against defining “rural area” with too much restriction, potentially disqualifying ideal sites for biorefineries that would, in fact, meet the program goals and increase economic opportunity in rural communities, but may be located in areas that do not fit the program definition. Offering eligibility to facilities in non-rural communities is critical to the success of the program goals and the advanced biofuels industry. Restricting the location of these facilities is not necessary to maintain the spirit of enhancing rural development and the geographic diversity of advanced biofuels production. More flexibility of site selection, not less, should be installed in these programs.
The commenter further states that having a consistent, cost-competitive regional supply of feedstock is key to the success of any project. Non-rural plants that use agricultural feedstock will most certainly rely on the surrounding rural communities to produce, harvest, store, and handle feedstock needs. With feedstock cost representing the largest operational cost of a biorefinery this, in turn, means that most of what the plant spends goes to the rural community in paying for that feedstock. This should demonstrate that the biorefinery does not need to be in a rural area to fulfill program goals. Excluding plants that are not in rural areas denies the supporting rural community significant opportunity.
One commenter states that winter barley from the rural community is key to the success of their project. According to the commenter, an independent economic analysis determined that their project will create an additional $100 million in revenue to rural farmers and create 450 farm jobs, clearly demonstrating that the biorefinery does not need to be in a rural area to fulfill program goals. In some circumstances, the decision of where to site a facility will be based on infrastructure often not available in rural areas (power, natural gas, transportation modes). Excluding facilities that are not within a strict definition of a rural area denies the supporting rural community significant opportunity.
One commenter states that their research indicates that biofuel refinery business plans will produce biofuels that cost substantially more than JetA and diesel. The commenter believes it is vital to minimize biofuel costs where airlines are supporting development of biofuel refineries by long-term cost plus purchase contracts. The commenter states that early research suggests that biofuel costs would be reduced by using as much existing infrastructure as possible throughout the entire supply chain (this includes delivery pipelines, refinery facilities, and agricultural infrastructure) and that requiring a biorefinery to be located in a rural area is likely to make it impossible to use some existing infrastructure, most particularly at refineries. The commenter recognizes that the purpose of the program is to support business development in rural areas, and proposes that biorefineries that are not located in rural areas, but obtain more than 75 percent of the dollar value of their raw materials from rural America, should qualify for the program.
One commenter states that, to maximize the rural economic benefits of the section 9003 program in furtherance of the Agency mission, a project's location in a “rural area” be removed as a threshold eligibility requirement and, instead, that a project's rural economic benefits be added as an evaluation criterion to proposed § 4279.265(d). Rural Development's mission to enhance the quality of life and economic foundation of rural communities would be furthered by a more comprehensive evaluation of a project's potential rural economic benefits. A project's rural economic impact is not only determined by the location of the biorefinery, but by the origin of the feedstock as well. Awarding points to projects based on their level of economic impact to a rural community is consistent with the Agency's mission and allows maximum opportunity for the commercialization of domestic advanced biofuels in the U.S. Dedicated energy crops, such as carnelian, are grown in rural areas. Thus, the commenter encourages Rural Development to consider a project's location in a rural area or its feedstock's rural origins as plus factors in the evaluation criteria. Many non-rural advanced biofuel refining projects can yield substantial economic benefits for rural America, in addition to increasing energy independence, decreasing greenhouse gas emissions, and diversifying agricultural markets. Thus, a more inclusive approach would maximize the impact of the section 9003 program.
One commenter believes that, while the definition of a rural area should be included, the definition proposed is too broad. The commenter requests deleting the wording “and the contiguous and adjacent urbanized area” through the remainder of the paragraph ending with the words “otherwise considered not in a rural area under this definition.” The use of “not more than 2 census blocks,” and “contiguous and adjacent urbanized area” appears intended to make the definition of rural as broad as possible, which is unwarranted and inappropriate. The Agency's scarce funding dollars should focus on truly rural areas particularly those further away from larger cities and more densely populated areas. The benefits of job creation should go to actual rural areas, not simply those areas that are adjacent to rural areas.
One commenter states that, while the proposed rule states that projects that are located in areas determined to be “rural in character” will be eligible, it does not explain how this nebulous determination will be made except to say in the same manner as in the business and industry (B&I) guaranteed loan program. The commenter believes that this terminology is far too broad and should not be allowed for determining rural areas. B&I guaranteed loans are much smaller than those envisioned in this program and the commenter believes the program should truly serve rural areas. Allowing rural areas to be defined in the manner stated is completely arbitrary and could open the program to abuse and unnecessary criticism.
One commenter states that the rural area requirement needs to be amended because many of these facilities have to be located where there are essential infrastructure, land available and
One commenter believes that, for new projects, implementing the rural area requirement will help the Agency fulfill its mission to improve economic conditions of rural America. However, with regard to retrofitting of existing biodiesel facilities, this requirement may not be practical as many existing facilities are no longer in production and are not all located in rural areas and an exception should be considered if the viability of the project is otherwise strong.
One commenter supports the requirement that the program only be used for biorefineries in rural areas. The commenter believes that the program should be targeted to rural economies.
The Agency notes, however, two provisions of the interim rule. First, the project must still be located in a State in order to participate in this program. Therefore, the Agency has modified the location requirement so the project must be located in a State, as defined in § 4279.2. Second, the project must be located in a rural area in order to receive points under the potential for rural economic development criterion (see § 4279.265(d)(8)).
The commenter requests expanding the boundaries that define the location population to define a city as a populace of over 500,000 to 1,000,000 persons versus 50,000 persons.
Due to the present classification by the Agency, the commenter is not qualified to apply for any Agency funding programs (grants or loans) because the commenter is located in an area that encompasses the City of Erie and its outlying areas, even though they have low population.
The commenter states that their plant has the versatility to run on various feedstock from non-vegetable oils to animal fats to agricultural feedstock such as soy. It is also located on Lake Erie where it has access to shipping, two interconnected railroads (CSX and Norfolk Southern), I-90 and I-79. Thus, it can easily bring in feedstock and ship out finished biodiesel. The commenter states that, if they could be deemed located in an applicable area, then they could apply for Agency funding and build on relationships with local/domestic farm institutions.
As a regulatory matter, a 51 percent determination of domestic investors is untenable. An investor's domicile often cannot be discerned as foreign or domestic. A successful, ready to scale biochemical company is usually funded by a number of sources, both foreign and domestic, often made up of venture funds with investment from around the world, funds of funds, and independent investors alike. To discern whether or not the individual owners or investors of a fund, that owns a fund, that is invested in a particular portfolio company has 51 percent U.S. ownership, is not only impractical, it is impossible.
Additionally, the citizenship requirement is hurting rural America. The policy is delaying the administration's ability to reach its economic goals for rural America and energy independence goals for the country. The commenters hope that the Agency will use all of the resources available to help the administration reach its energy independence goals by removing all citizenship requirements. Rural Americans that benefit from the jobs created by these biorefineries do not care about the ownership of the biorefineries. The jobs provide much needed economic stability for local economies. The commenters state that Congress did not include eligibility restrictions as part of the program and the Agency's decision is a significant departure from Congressional intent. Rural Development regulations were implemented when our rural economy looked significantly different from today's rural economy. The commenters believe that the creation of biorefineries should be promoted in rural America, regardless of ownership.
One commenter further states that Congress specifically outlined the
Another commenter states that to impose such a restriction without being mandated to do so by statute is counterproductive and will delay the development of new technologies and thwart achievement of the section 9003 program's purpose. To the extent the Agency considers citizenship of the borrower, it should be limited to the requirements of section 9003 and consider it only as one of many factors in evaluating and scoring an application.
Two commenters recommend considering foreign ownership in the context of all of the benefits of any given project and make decisions on a case-by-case basis rather than establishing an inflexible limit on the percentage of foreign investment.
One commenter offers this provision: The proposed rulemaking requires that, if the borrower is an entity other than an individual, it must be at least 51 percent owned or controlled by individuals who are either citizens or legally admitted permanent residents residing in the U.S. When an entity owns an interest in the borrower, that entity's citizenship will be determined by the citizenship of the individuals who own an interest in the entity or any subentity based on their ownership interest. Similarly, if the borrower is a subsidiary, the parent entity or the entities that have an ownership interest in that borrower must also be at least 51 percent owned by individuals who are either citizens or nationals or legally admitted permanent residents residing in the U.S.
One commenter recommends that non-U.S. ownership be permitted and that, if points are awarded for local ownership, the Agency consider awarding points based on estimated job creation. On the whole, the commenter supports rational requirements for new technologies that will foster rural development as those industries have a chance to grow.
One commenter recommends that, as long as the ownership of the project has at least 25 percent U.S. citizenship, the project be equally eligible. Given the challenges to achieve funding sources to date, the program should be open to the widest possible sources of funding.
One commenter recommends allowing borrowers that are entities that are other than individuals to be owned or controlled by less than 51 percent of either citizens or legally admitted for permanent residence. The percentage could be 34 percent of U.S. ownership or legally admitted for permanent residence instead of 51 percent. It will allow for additional investment from non-U.S. investors that may have a higher comfort level in investing in these types of energy projects. These types of energy projects are more advanced in other countries, so foreign investors are more familiar with the technology and are willing to invest in these projects. Banks in Europe are also more familiar with financing these types of projects, so they may feel more comfortable to finance a project in the U.S. if one of their existing customers in Europe is investing and developing an energy project in the U.S.
One commenter believes that the foreign ownership requirement should be strengthened to eliminate the automatic presumption that companies traded on U.S. stock exchanges are 51 percent owned by persons who are either citizens or legally admitted permanent residents residing in the U.S.
One commenter states that the proposed rule makes eligibility parameters extremely broad as almost any U.S. citizen or corporation with majority U.S. ownership is eligible. The commenter agrees with the citizenship requirements as one way to partially limit the scope of those eligible for loan funding.
The Agency received numerous comments on program obstacles and ways to improve the program. Please note that for those comments received under this section that are the same or similar to comments made on specific provisions within the rule, the Agency has grouped such comments with those comments made on the specific rule section rather than presenting them below in this section.
Several commenters state that the evaluation process must be transparent, clearly stated, with established timelines for the approval process. These commenters recommend holding a pre-application and post-application meeting at the state office, at a minimum, to discuss the procedure and the requirements with the applicant and the lending facility. Large projects take intense coordination, management, and incur the up-front expense of permitting, detailed engineering, and other development costs. The financing program must be implemented within the same schedule as the other tasks to properly complete the project on time and under budget.
Lastly, with regard to the suggested meetings, as noted in an earlier response, the Agency can meet with the lender/potential borrower prior to application submission to discuss the scoring criteria and informally review the proposal and application material completed to date. Further, Agency personnel are always available to answer questions.
One commenter states that, to be a complete program, the loan guarantees must include the construction period.
One commenter states that one of the greatest needs in renewable energy financing is construction financing. The commenter recommends setting up the section 9003 program to provide its guarantee at the outset of the project's construction so that the guarantee covers the construction risk. It appears this may be the case based on the reference in § 4279.256(e), but this should be made expressly clear that such coverage is to be available routinely.
Three commenters recommend financing through the use of corporate bonds. One commenter states that they recently reviewed a proposed corporate bond structure that would allow companies to issue 15 to 25 year non-amortizing bonds that would have the Agency guarantee attached. This would significantly reduce the cost of borrowing and provide a creative alternative to conventional commercial bank financing. The commenter believes using the loan guarantee program in support of this type of structure would provide a very viable financing source for these projects and would help achieve the overall objectives of creating a biorefinery industry.
One commenter states that, because they are recognized as a more freely tradable instrument than loan participations, the interest cost to borrowers (bond issuers) is often lower with bonds than with traditional loans. By not recognizing the predominant method for financing large commercial projects, the section 9003 program will likely not attract the larger producers of advanced biofuels and, equally important, will likely not attract the investment banking firms that are needed to facilitate these complex financings. The commenter suggested language for allowing the use of corporate bonds.
Three commenters recommend allowing borrowers to issue notes or bonds directly to accredited investors by way of capital markets offerings for both the guaranteed and unguaranteed portions. Two of the commenters point out that the proposed rule allows only for the sale of indirect “participations” in the unguaranteed portions, with the original lender retaining title to the notes, and does not contemplate the sale of notes or bonds in the capital markets (except with respect to the sale of the guaranteed portion to accredited investors).
The commenters state that banks are unwilling to fund the unguaranteed portion of the loans. The commenters point out that, in the current market,
One commenter encourages the Agency to consider utilization of bond financing mechanisms in order to expand opportunities for debt finance where traditional credit markets are tight as one way to reduce program obstacles. The commenter believes that the currently proposed requirements dramatically reduce the number of lenders that will be willing to work with the program due to the current bank market and high-risk associated with this new industry. The Agency can address this problem by expanding the definition of eligible lender to enable utilization of the bond market in addition to the bank market. The bond market is favorable at this time because it is largely untapped in comparison with the bank market, it is more flexible than traditional commercial lending, and it eliminates a substantial portion of the risk for the lender. This can be accomplished by permitting a corporate trustee and investment bank to, collectively, function as an “eligible lender” for purposes of taxable corporate bond transactions.
One commenter states that the regulation needs to clearly state if bonds are allowed, what type of bonds should be allowed, who can issue the bonds, who can purchase the bonds, and how they are to be serviced.
The Agency considers this as distinct from the typical investment banking scenario, where an investment bank secures the financing from outside investors. After the funding is secured, the investment bank has no further involvement with the transaction. Servicing is handled by a trustee who reports to and is controlled by the investors. The Agency considers that this is an investment instead of a loan and that its current authority is insufficient to guarantee investments.
Recognizing the current difficulties in securing funding, the Agency has been approving certain bond transactions. The Agency considers that, under the limitations contained in this regulation, guaranteeing these bonds is in keeping with its authority. In order to be more transparent of its willingness to guarantee certain bond transactions, the Agency has modified this regulation accordingly.
Specifically, the lender is required to provide the loan proceeds and service the loan. The Agency will allow a trustee to provide limited servicing only if the trustee is fully under the control of the lender. Holders' rights are limited to receiving payments under the note or bond and if those payments are delinquent making demand for payment on the lender and the government as provided in the regulation. In certain cases where the lender and borrower desire to change the loan terms, the holder is also required to consent to any changes. Loans providing holders any other rights are ineligible for guarantee under this program.
The commenters recommend expanding the section 9003 program to (1) permit treatment of large commercial banks or investment banks with substantial corporate trust practices as “eligible lenders” when acting as a bond trustee and (2) find that the “minimum retention” requirements are met if the bank, in its capacity as bond trustee, holds 100 percent of the legal title to the underlying corporation debt obligation and to related mortgage and security interests, even if the beneficial interests are participated out and held by a controlled number of sophisticated, institutional investors.
For purposes of the section 9003 program, the commenters advocate the expansion of the lending criteria to include a structured bond financing approach, which will assure the Agency of safety and soundness in the lending activity it guaranties, including high quality loan servicing, as well as the involvement of knowledgeable, professional investors well-qualified to evaluate and manage risks.
Regarding eligible lenders, the rule reflects requirements that are similar to the requirements for a traditional lender under the Business and Industry guaranteed loan program. The Agency has determined that its current authority would not permit using an investment bank bond model. Unlike the authority given to the Department of Energy that permits the guarantee of debt obligations in addition to loans for several of its programs, the authority for this program is limited to guaranteeing loans.
One commenter states that they have contacted numerous banks and insurance companies and have been unable to locate a commercial lender to finance the debt portion of a project despite the section 9003 program. Although the financial market conditions of the past 18 months have contributed to some degree to this challenge, the lack of available lenders has less to do with the recent debt crisis and more to do with structural issues with the program. The section 9003 program today is modeled after the B&I guaranteed loan program and requires a commercial lender to apply for the guarantee. This model has worked fine for the B&I guaranteed loan program because the typical loan size is sufficiently small. There are hundreds, if not thousands, of small rural banks that can fund small guaranteed loans. The section 9003 program, targeted at much larger projects with debt components that start at $70 million and
As a result, the commenter states that they have been working with the Agency, specifically Undersecretary Tonsager and his team, to determine how best to adapt the program to the use of the commercial bond market which is a far better solution for the following reasons:
1. Bond investors provide “patient” capital that provides term lengths that match the project life better than a commercial loan.
2. Bonds do not include “sweep” provisions whereby the commercial bank lender “sweeps” any excess cash generated to reduce the principal of the loan. When this happens, it reduces the returns to equity investors and thereby makes it much more difficult to attract equity capital.
3. The bond market is 10 times larger than the commercial debt market.
4. Higher levels of due diligence are performed than is true with small lenders because a professional investment bank performs the underwriting and the bond investors also does similar due diligence.
5. Loan servicing is performed by a trustee that has a higher level of professionalism and process technology to assure greater compliance and overall loan processing. In the worst case scenario of liquidation, these trustees are far more capable of making debt holders whole than is a small lender.
The commenter proposes the bond market alternative because of the challenges with loans of the size needed for section 9003 projects and the lack of availability of lenders willing to participate. The additional minimum criteria in the proposed rule will make it even more difficult to find lenders willing to participate. The commenter believes that the bond market approach not only meets the criteria of the program as provided by the statute, but provides benefits in terms of lower risk to the Agency and better screening of projects.
The Agency also recently entered into a partnership agreement with the Navy to assist in developing advanced biofuels for fleets and vehicles. Five energy targets have been adopted by the Navy to reduce conventional fuel use. This will require an intense effort and coordination by the advanced biofuels industry just to supply the Navy this type of fuel, notwithstanding the RFS requirement and other industry needs. It is vitally important to our national security that the Agency can provide assistance to both the industry and the Navy in this effort through assisting in the development, implementation and financing of these new biofuels projects that must be implemented to meet such a demand.
However, the Agency has added a provision to the rule to allow the Administrator to award bonus points to
Another commenter also encourages the Agency to include grants for developing and deploying new and emerging technologies that, at a minimum, emanate from paradigms different from the one built into the proposed rules, and preferably that target transformative innovations in rural America.
The commenter further states that the Agency needs to include in its rules the ability to fund transformative technologies in the agriculture sector that support and accelerate the sustainable production of advanced biofuels.
The commenter states that ag-interested/savvy venture investors do not truly exist in the agriculture sector. Thus, incremental agricultural improvements have tended to be the norm; paradigms producing transformative innovations in this sector are few and far between. The DOE views its mission in strictly narrow terms as only pertaining to the fuel, even though by definition biofuel includes agriculture. Thus, it has been funding interesting science “fuel only” focused efforts that will likely take many, many years to deploy at commercial scale with competitively priced output. Our urgent national imperative is for a domestic renewable source of liquid fuels. Urgency requires transformational innovation in the agricultural sector. The Agency is the only entity with enough knowledge and experience in this sector, and with a mission to revitalize rural America, to foster the kind of innovation that can enable transformation in the agricultural-related advanced biofuel sector.
The commenter provided the following discussion to support their position regarding grants for innovative technology:
(1) The new paradigm is born of a different way of thinking about how to solve our urgent near-term need for a thriving domestic biofuels industry. The new paradigm recognizes that it is really the yeast that produces the biofuel and thus is at the center of the ethanol ecosystem, and that the current yeast only produces one product—ethanol. The facilities the existing yeast is deployed in, as a consequence are known as “ethanol plants.” The commenter utilized off-the-shelf biotechnology to modify the single-product yeast so it would multi-task. When multi-tasking yeast are deployed, producing ethanol and valuable co-products simultaneously, ethanol plants automatically become biorefineries by definition. Furthermore, since yeast do not care where their C6 sugar-food comes from, the biorefineries deploying multi-tasking yeast can use feedstock other than grain feedstock (e.g. stover, sorghum, grasses, etc.) to produce advanced biofuels. Off-the-shelf technology exists today to convert cellulose into C6 sugar-food for the yeast to ferment into ethanol. The problem heretofore has been doing so in an economically sustainable way from just the cellulose alone. However, the valuable co-products that multi-tasking yeast produce enable economically sustainable conversion of only the cellulose portion of cellulosic feedstock, allowing the hemi-cellulose and lignin to be used for heat and energy to run the operation in a carbon neutral manner.
(2) When the yeast element of the biofuel system changes, all the other elements of that system also change. The most important change from switching to multi-tasking yeast is a sustainable advanced biofuel business model. The revenue in this new model is from the sale of ethanol and valuable co-products that are derived solely from the C6 sugars converted from just the cellulose portion. The hemicellulose and lignin used in CHP facilities provide the heat and power to run the operation and generate more revenue through sale of excess electricity to the grid. Private capital will invest in a sustainably profitable business model—the key element that is missing from the biofuel funded efforts to date. Farmers will grow cellulosic crops when a profitable market exists.
The logical sequence of events, therefore, will proceed as follows:
a. The Agency should change the rule pertaining to grants in Section 9003, allowing the Agency to make “grant(s) for the development of processes for converting renewable biomass to [sustainable] advanced biofuels.”
b. The revised rule would allow the commenter, for example, to apply for a grant under Section 9003 to complete the optimization of its multi-tasking yeast in order to produce commercially viable levels of co-products in advanced biofuel biorefineries, furthering the fundamental intent of the rules “to assist in the development of new and emerging technologies for the development of advanced biofuels.” It would also enable the Agency to successfully advance its agenda to revitalize rural America by creating thousands of new green jobs, and do so at an accelerated pace.
c. The commenter would then deploy multi-tasking yeast first in existing ethanol plants, where just the cellulose from cellulosic feedstock (initially stover because it is already grown) is converted to C6 sugar for the yeast to ferment.
d. Ethanol produced in the biorefinery would be sold through existing channels at market prices as it is today, and the byproduct portion would be sold as a molasses-type material or dried and sold as a powder (market pricing for amino acids is quite stable), which has enabled computation of the $0.70/gallon of revenue.
e. With a proven sustainable business model (by converting an existing ethanol plant to an advanced biofuel biorefinery), private capital will invest in building many new biorefineries (even without guaranteed loans) to expand the industry, and farmers will grow the cellulosic crops to meet the new market for them.
The systemic changes also include:
(1) No need for funding for new pilot plants to demonstrate viability of unproven, complex and costly technologies.
(2) Existing designs for ethanol plants (substituting pulp mills at the front end for existing corn grinders) can be used for new advanced biofuel biorefineries, expediting deployment of these facilities at a lower cost, and accelerating production of advanced biofuel that can meet the RFS2 production levels and timeline.
(3) Accelerated advanced biofuel production (within 24 months post funding) means accelerated construction and operating jobs in rural communities, which will enable the Agency to dramatically demonstrate to rural America and to Congress that it is the Agency that can make the transformative difference to rural America and to our domestic biofuels industry that the President, Congress and the American people voted for.
In conclusion, the commenter advocates rules that allow an Agency-funded transformational innovation to be developed wherever the resources within the United States most readily exist in order to expedite development and deployment, but the resulting technology must be deployed in rural America. If the statutory language requirement in the 2008 Farm Bill will not allow for inclusion of funding for development of agricultural-biofuels related transformative innovations like the one discussed above, then provision for such should be made clear under § 4279.202(b).
The Agency agrees that the market value of the technology should not be counted in the project cost, because it is the Agency's intent to focus the program's limited funding resources on implementing the technology rather than developing technology. However, the Agency notes that technology may be considered as part of the collateral based on the value identified on the borrower's audited financial statement prepared in accordance with Generally Accepted Accounting Principles (GAAP) and subject to appropriate discounting as provided for in the rule.
Another commenter, however, states that, while physical laboratory and equipment costs should be considered eligible project costs if they are listed as assets of the borrower, there is no legitimate value to intellectual property until the industry has emerged into commercial-scale production, and, at that point, commercial values will be changing to meet new supplies and demands. If there is the opportunity to apply a portion of what the borrower perceives as the value of its intellectual property towards the required equity contributions, additional companies with promising technologies may be eligible for assistance under the section 9003 program. Because the documentation required by the Agency is no different than what a prudent lender should require, eligible project costs should not include any item that is not considered a project cost in the borrower/lender transaction being guaranteed.
One commenter explains that, as a startup company with first-of-kind technology, they have and will incur significant cost securing intellectual property, financing arrangements, R&D expenditures, and developing new forms of renewable biomass. The commenter believes these costs should be allowed as eligible project costs and should be applied to the cash equity requirements.
Under the section 9003 program, a chemical production facility included as part of a biorefinery can have no more than 30 percent of the revenue generated at the biorefinery, yet the revenue generation of chemicals compared to fuels is traditionally disproportionately higher. This revenue restriction inhibits the creation of joint ventures by putting a cap on the future revenue of the potential biorefinery partner, limits the growth potential due to market demand or other external factors that affect the partners, and limits the ability of biofuel companies to enter into a revenue generating joint venture in efforts to become economically viable and self-sufficient in the long-term.
The most powerful aspect of the biorefinery as a business model is the ability to produce multiple products, so that the plant can weather prices drops, fluctuations in demand and volatile feedstock prices by arbitraging between the various products produced and privileging those that are the most profitable at any given time. If this cap exists and biofuels are not economically viable or require large subsidies to be viable, then limiting the amount of higher value-added products that can be produced will condemn the biorefinery to failure.
In addition, as a practical matter, the Agency will be required to regulate the 70 percent revenue generation requirement on an ongoing basis. From the bioproduct and biochemical perspective, this is a revenue limitation of 30 percent. Limiting revenue generation of one component of a business within a free enterprise is questionable policy. The Agency does not have a rational basis for this limitation grounded in sound economics, nor does it serve the broader policy purposes of the program. Biofuels and bioproduct companies should not be limited in revenue for any reason. The U.S. economy and its taxpayers will only reap the benefits of biorefineries if they are profitable ventures. They should be free to innovate new business models in order to achieve sustainable success.
One commenter agrees that the intent of the program is to create biorefineries that produce advanced biofuels, but believes that the 70 percent requirement is too high. The commenter believes that as long as 35 percent or more of the revenue is from the sale of advanced biofuels, then the project should be eligible for the program.
One commenter states that the advanced biofuels industry is an
One commenter states that it is important that new fuel production methods pass through the financing “Valley of Death” so that they can be replicated in the market without government financial assistance. Hence, whether a first of a kind project under section 9003 sells much, if any, advanced biofuel should be irrelevant as long as the proposed business plan is financeable and there is sufficient evidence that there is a market (or emerging market) for the proposed fuel. Thus, more new technologies will be financed and more new advanced biofuels will ultimately come to market. Because even the small number of section 9003 eventual winners will have a negligible total impact on U.S. fuel consumption, it is more important to set the stage for future growth rather than saddle these early stage projects with excessive hurdles to overcome to create a successful business plan for a first commercial project. As long as the borrower can explain cogently how future plants will produce and deliver advanced biofuels and bioproducts that mitigate imported fuel or energy intensive products, these should be equally rewarded in this program.
One commenter agrees that the program should be focused on projects that primarily produce advanced biofuels, and encouraged the Agency to make a determination of the nature of the project on a site-specific basis and not promulgate a bright-line threshold. BTL (benzene, toluene, and xylenes) facilities can be configured to produce various combinations of fuels, co-products, and electricity. Thus, it may be that an optimized plant on an efficiency basis would be configured for something marginally less than 70 percent revenue from advanced biofuel. While a plant could be configured to meet a 70 percent requirement, the commenter asks that the Agency provide flexibility to allow for the most efficient plant configurations, which would be consistent with the proposal to consider life-cycle GHG emissions and other performance criteria.
Two commenters state that, while the Agency has proposed to require a certain percentage of biofuels be produced at the facility receiving an Agency loan guarantee, other product streams from the same feedstock can enhance the economic viability of biofuel projects. Market forces will affect revenues based on ever-shifting price points. Thus, a requirement for a percentage of revenue would make financial and operational planning very difficult for a biorefinery that receives a loan guarantee. An energy content or biomass usage metric is more effective, allowing developers to plan their facility/project at the outset to ensure that a certain percentage of the energy or biomass is used for biofuels. The commenters recommend basing any required percentage related to biofuel production on energy content or biomass usage, not revenue. The commenters also urge the Agency to promulgate flexible guidelines to implement this approach at this stage of development and uncertainty in the biofuels market.
The Agency has determined that measuring the output is a better metric than the energy content of the biomass input in determining project eligibility, because the energy value of biomass input is not necessarily equivalent to the energy product outputs. The primary purpose of the program is for the development of advanced biofuels. For these reasons, the Agency is focusing on production of advanced biofuels rather than consumption of feedstock.
Private financing entities will judge whether “facilities are worth financing” solely based on the economic potential of that facility to earn sufficient profits to be able to pay back the loan to the financing entity as well as pay returns to its equity holders. Therefore, any regulations should be structured such that they will facilitate the manufacturing plant achieving maximum profits and enhancing its economic viability. The Agency itself recognizes the value of multiple revenue streams that exist in a biorefinery operation. For example, the Agency states that “byproducts are an important revenue source for many biorefineries.”
To provide an example: The commenter's process inherently produces byproducts at a certain level. Monetizing these byproducts significantly enhances the financial viability of a biorefinery facility. As an example, one of the byproducts is an organic acid that sells for more than $2,000/ton, significantly more than the value of ethanol. Under a revenue-based eligibility requirement, the commenter states they would be significantly restricted from monetizing this byproduct, which is currently made exclusively from fossil fuels. Since this acid sells for more than 3 times the value of ethanol, the commenter states they would only be able to sell very small amounts in a revenue-based scenario, losing not only the revenue and societal benefit of replacing a fossil fuel derived material, but also incurring a cost to dispose of the material. In a volume-based scenario, the commenter states they would still focus on producing advanced biofuels as the primary purpose of the facility, but also would be able to enhance the economics of the facility by realizing the value inherent in its processes' byproducts.
For this reason, the commenter strongly encourages the Agency to interpret the purposes of Section 9003 broadly and in a way that will most likely accelerate the ultimate development and production of advanced biofuels. Imposing a 70 percent revenue requirement defeats this purpose.
First, it is unclear what the ramifications would be to the applicant if, in practice, this 70 percent threshold was violated. Would this constitute a default under the credit facility or security agreement? If so, this injects an artificial limit into the operation of projects that may, at points, obligate the applicant to run the project in a commercially unreasonable or imprudent way by producing products that fail to provide sufficient revenue to meet debt service.
Second, and related to the first, it is much more difficult to control price for a product (unless long-term off-take contracts are in place) than volume produced. Price fluctuations may inadvertently cause a breach of any loan agreement or security document.
Third, there is a significant pricing differential for feed, nutraceuticals, bioplastics, and biochemicals compared to fuel. This pricing differential could distort financial models and disqualify early algae projects that will rely on co-product sales to make the fuels portion of the project “pencil out.” Borrowers should not be penalized for capitalizing on multiple value streams. If any limit on product mix is imposed, this should be volumetric rather than revenue-based.
Fourth, Section 9003 imposes no such specific threshold for purposes of a biorefinery's eligibility for the section 9003 program. Section 9003 provides that “eligible technology” for purposes of qualifying for a loan guarantee is “technology that is being adopted in a viable commercial-scale operation of a biorefinery that produces an advanced biofuel” as well as “technology * * * that has been demonstrated to have technical and economic potential for commercial application in a biorefinery that produces an advanced biofuel.” Nothing in this sentence requires anything more than a biorefinery to produce some quantity of advanced biofuel, and it certainly doesn't base a requirement on a percentage of revenue. Further, a “biorefinery” is defined as a “facility (including equipment and processes) that “(A) converts renewable biomass into biofuels and biobased products; and (B) may produce electricity”. On the face of the statute, Congress did not require a project's eligibility to be based on production and sale of a specific product mix or revenue mix, and biobased products and electricity are specifically anticipated to be key attributes of any biorefinery. The Agency's exercise of administrative discretion on this issue goes too far and jeopardizes the success of a much-needed program.
This limit on the revenue mix from products produced by the project is counterproductive to the purpose of the section 9003 program. Imposing an arbitrary limit on the product and revenue mix unsupported by Section 9003 will negatively affect borrower's ability to make prudent business choices and maximize revenues based on market demand for certain products at any given time during the loan term. This is not in the lender's best interest, it is not in the borrower's best interest, and it is not in the taxpayer's best interest when the borrower defaults.
The commenter recommends considering the merits of (most desirable to least desirable): (i) Completely eliminating this requirement for project eligibility in favor of a certification by the borrower that the primary purpose of the project over the term of the loan is the production of advanced biofuels; (ii) imposing a volumetric requirement rather than a revenue requirement with the volumetric requirement being a “majority” rather than 70 percent; (iii) reducing the 70 percent revenue threshold to a “majority”; (iv) providing a waiver process to avoid default; and (v) permitting the carry-forward and carry-backward of surpluses and deficits so that the 70 percent revenue requirement is imposed over multiple years.
In any event, the commenter encourages the Agency to clarify its intent here and the ramifications for failing to meet such a requirement, and recommends either discarding the 70 percent revenue-from-fuels requirement or completely restructuring this requirement.
While the commenter encourages and supports the premise that “algae is agriculture,” the commenter urges the Agency to avoid making the same mistakes that Congress and other agencies have made in the past when crafting legislation or policy with traditional agricultural food crops in mind. The Agency should not impose an existing model on a new industry at this point in its development, despite the fact that cooperatives and producer associations have served the terrestrial agricultural industry well. To do so in terms of awarding points when scoring applications would severely disadvantage biorefineries seeking to use algal feedstock (and other feedstock) vis-à-vis other projects that would, for example, use corn stover, cobs, straw, sugar, or other cellulosic feedstock.
The commenter recognizes the requirements in Section 9003(e)(1)(C) and the critical importance of producer associations to the development of the agriculture industry in the U.S.; however, the commenter urges the Agency to avoid imposing existing models on new industries. Disproportionate benefits should not be afforded to certain business structures that may be inapplicable to certain sectors of the bioenergy industry. The commenter states that the Agency should minimize such benefits.
One commenter states that, because most producer associations and coops are not yet involved with nor have a track record in feedstock procurement and supply, a lender will generally consider such contracts to be unreliable and likely unfinancable. This proposed criterion should be dropped in its entirety so as to allow projects to procure reliable feedstock wherever possible so that pre-commercial technologies can be built and validated. Do not add this level of complexity. It will almost certainly render most projects ineligible and would be a travesty for the program.
Three commenters state that the Agency should not place limits on feedstock suppliers in order to qualify for this program. Feedstock availability and price basically determine the success of the plant and maximum flexibility should be awarded in order to maximize the opportunity for success.
Several commenters state that a 60 percent threshold is unrealistic and, at this time, presents an artificial restriction for good, bankable projects. The commenters state that woody biomass is currently the lowest cost, most dependable, and most accessible feedstock for large-scale commercial advanced biorefineries, and is not traditionally owned, managed, or harvested by producer associations and/or cooperatives. The commenters support the activities of producer associations and cooperatives in developing advanced biofuels facilities and/or supplying biomass to these facilities, but state that the current costs and lack of infrastructure to economically and sustainably supply the facility with crops, such as miscanthus or energy cane, at a price comparable to woody biomass restricts the project from providing the necessary base level of feedstock pricing support that makes this type of business model bankable in the near term.
One commenter states that they reviewed several proposals from potential algae producers to build out 10 to 100 acre algae production facilities that could provide a minimum of approximately 10,000 gallons (235 barrels) per acre/year, and over a million gallons of biomass per acre/year on a totally renewable basis without having to address growing seasons, rainfall and other factors that crop farmers must consider. Due to these considerations and the land use requirements of other feedstock, this would be practical, but due to the de minimus land requirement for algae production, the commenter does not believe that this is a practical restriction and requests that an exception be granted for algae production.
One commenter states that when measuring the potential impacts on rural economic development, the easiest things to measure are:
a. Amount of construction funds that will be spent in the local area and immediate region for equipment, supplies, labor and other support services.
b. Downstream effects of construction job spending on the local economy, which is generally a multiple of the primary spending (velocity of money).
a. Number of new jobs and salaries to be paid plus the downstream effects that these employees will have on spending in the local economy.
b. Feedstock purchases. Determine who gets paid and how much in the feedstock supply chain in the local area. In some cases these will be estimates, but given that the feedstock supply chain must be fairly transparent to meet lender requirements, these estimates can be quite accurate.
Dependence by the Agency on the RFS2 definitions and delineations is premature. Once the science behind GHG emissions is more fully understood and defined, then the Agency may want to look at including some tiered system to determine the environmental positive impact. The commenter suggests that this could be a much more appropriate discussion as the 2012 Farm Bill takes shape.
The commenter states that a tiered scoring system based on GHG reductions would not further the intent of the program and not help rural economies through the creation of advanced biorefineries. However, the commenter believes that a project should show a reduction in GHG emissions as verified through a life-cycle analysis in the published literature or completed by a university or a private third party that specializes in such analysis.
With respect to the commenter's concern about GHGs, the Agency encourages applicants to provide any and all information that supports a positive effect on resource conservation, public health, and the environment. The Agency considers a reduction in life-cycle GHGs to be a positive effect on the environment. Thus, if the borrower demonstrates a reduction in life-cycle GHGs, the borrower will receive points under § 4279.265(d)(6). However, a borrower will also receive points under this criterion if they demonstrate a positive effect on resource conservation, public health, or the environment in another manner. Finally, to help address GHG life-cycle emissions, the Agency has revised, as noted above, the scoring criterion such that an advanced biofuel must meet an applicable renewable fuel standard as identified by the EPA in order to receive points under the first scoring criterion.
With regard to the comment on potable water, the Agency encourages applicants to provide any and all information that supports a positive effect on resource conservation, public health, and the environment. The Agency may consider potable water under this criterion, for example resource conservation. Thus, if the borrower demonstrates positive impact GHGs or potable water, the borrower may receive points under § 4279.265(d)(6) and, as noted above, the advanced biofuel must meet an applicable renewable fuel standard as identified by the EPA to receive points under the first scoring criterion. However, the Agency has chosen to provide applicants more options in demonstrating a positive effect on
One commenter recommends structuring the loan guarantee program to promote the best-performing biofuels to the maximum extent possible and “pay for performance.” As one of the purposes of the program is to “promote resource conservation, public health and the environment,” the commenter encourages the Agency to link the loan guarantee application scoring criteria to the entire performance profile of the advanced biofuel proposed to be produced.
The commenter believes that, while the assessment of the GHG performance of fuels, as well performance relating to air quality, water quality, and water quantity are all important aspects of the performance profile of a fuel, the Agency should assess other important factors, such as the compatibility of fuels with existing infrastructure and equipment and the total thermal efficiency of the facility, among other relevant factors. Linking payments to the achievement of GHG reduction thresholds under EPA's RFS2 program, as suggested in the proposal, would certainly help to achieve the goal of reducing GHG emissions.
While supporting consideration of life-cycle GHG reductions, the commenter encourages the Agency to fill existing policy gaps and maximize GHG reductions from biofuels by scoring proposed projects on the full life-cycle reductions actually anticipated based on a site specific life-cycle analysis, not merely on the basis of achieving minimum thresholds. The existing RFS2 program only requires that biofuels meet specific thresholds (such as a 60 percent reduction for cellulosic biofuels), but the program offers no incentives for producers to exceed those thresholds. Conversely, low-carbon fuel standards being developed by California and the Northeastern states encourage maximum reductions by fully crediting the reductions achieved. Under such an approach, a facility producing a fuel with a 90 percent GHG reduction benefit would score comparatively higher than a facility producing a fuel that merely meets RFS2 thresholds. The commenter encourages the Agency to adopt a similar approach that would best help the Agency achieve incremental GHG reductions and support the Administration's goal of reducing GHGs.
One commenter states it is important to remember that the industry must fulfill the advanced biofuel requirement of the RFS. The commenter believes that, if the Agency decides to award points towards an overall score that will then be used to evaluate and compare applications for facilities that produce biofuels that significantly reduce life-cycle GHG emissions compared to conventional fuels, the regulations should be kept simple to encourage streamlined administration of the program. While the commenter does not believe that the indirect land use change calculations included in the RFS regulation are mature or have been adequately vetted in the scientific community, if the Agency does include life-cycle GHG emission reduction benchmarks as a way to reward lower emitting fuels with additional points, the commenter recommends: (1) Relying on already established regulations instead of creating a new set of regulations for those calculations (
Despite requesting comment on many performance criteria, the Agency has proposed to reduce the points allocated to these criteria in its ranking scheme. Rather than reducing the points, the commenter believes it would be appropriate for the Agency to substantially tailor the scoring system around such criteria.
One commenter supports the approach the Agency is considering that would award more points to facilities that produce biofuels that significantly reduce life-cycle GHGs compared to conventional fuels. Drafting language to incorporate the EPA's renewable fuels standard and ongoing biofuels life-cycle analysis (in partner with the National Academy of Sciences) would structure the rules effectively. Given the need to address climate change, awarding points is a practical step in fostering development of emission-reducing feedstock production.
One commenter supports basing scoring criteria on life-cycle assessments and encourages the Agency to employ established methods being utilized by other agencies (e.g., the U.S. EPA). If the section 9003 program is a means to achieve the ends required by the RFS Program, then requirements imposed on borrowers as producers of renewable fuel for sale to obligated parties should be synchronous.
Two commenters recommend that, if the Agency insists on providing a benefit to locally owned companies, this should be increased to 200 miles from 20 miles. This required scoring criteria, like the producer association scoring criteria, benefits certain sectors of the bioenergy industry and not others and actually serves as a way for producer associations to get “double points” for the same thing. Owners of companies developing large-scale algae growth and cultivation biorefineries, unlike their counterparts using corn stover or wheat straw, will likely be located far from these production facilities due to the fact that these facilities are best located in areas where terrestrial agriculture activities requiring fresh water would be impossible.
To reduce possible double benefits for producer associations in the scoring criteria and to more realistically account for project finance-type investment by funds with urban domiciles into these $100+ million facilities, the commenter recommends basing “local ownership” on owners living either within the state in which the project is located or 200 miles.
One commenter states that the 20 mile limitation for local ownership is too restrictive. Many of these facilities will have to be located in larger communities that have essential infrastructure to service them, which could easily be more than 20 miles from the source of the feedstock. Also, many of these facilities will be utilizing specialized feedstock that may have to be obtained from further distances. The commenter recommends that 100 miles be used to determine local ownership.
Another commenter states that local ownership is important, but not as important as the jobs created in the rural economy where the biorefinery will be placed. The commenter does not support the scoring system in regards to this criterion. The commenter proposes the following criterion with a maximum of 10 points:
1. If more than 20 but less than or equal to 50 percent of the biorefinery's owners are local owners, 6 points will be awarded.
2. If more than 50 percent of the biorefinery's owners are local owners, 10 points will be awarded.
3. A biorefinery that has as its majority owner a publicly traded entity shall not be eligible for any points under this criterion.
Two commenters suggest that the Agency reconsider its proposal to award increased points to loan applicants that have a higher percentage of owners whose primary residences are within 20 miles of the area supplying feedstock to the biorefinery. While it is reasonable to expect that biomass production sites will be near a biorefining facility, requiring local ownership of the project and establishing a strict 20-mile proximity requirement for scoring is not necessarily the only manner in which to achieve this goal. The commenters urge the Agency to be flexible in its scoring on this matter and to ensure that comparable points are awarded for projects that use other means to encourage nearness of feedstock to biorefinery.
One commenter states that the Agency should not require local ownership of a biorefinery to qualify for this program. Local ownership requirements place additional investment challenges on projects that otherwise could have a significant impact on rural development. Lack of investment financing is the biggest impediment and this requirement handicaps projects even further.
The commenter further states they have seen a number of aviation fuel biorefinery proposals for 100 million gallons per year refineries that plan to use camelina, one of the most promising non-food feedstock. Each proposal indicates that, until camelina becomes a generally accepted crop by farmers, it is likely that a refinery would have to purchase camelina from farmers in several states and, as a result, the definition of “local” would need to be changed.
Similarly, another commenter states that they have discussed with many prospective biorefinery applicants the advantage of combining Federal NMTC Program available to certain commercial banks with a loan guarantee under the section 9003 program. The NMTC Program is administered by the Community Development Financial Institution Fund (CDFI Fund) within the Department of Treasury and provides tax credit equity to certain approved lenders. The program has the effect of “de-leveraging” a project by passing through the tax credit equity to the borrower as an additional source of funds for a project. The commenter states that in order to accommodate the use of the NMTC Program by affiliates of commercial banks and thrifts who have been approved by the CDFI Fund and the section 9003 program, § 4279.202(c)(2) must be revised to read as follows:
“The lender must maintain at all times the minimum acceptable levels of capital specified in paragraphs (c)(2)(i) through (iii) of this section. If the regulated or supervised lender is a commercial bank or thrift, or an Affiliate of a commercial bank or thrift, these levels will be based upon those reflected in the Call Reports and Thrift Financial Reports of that commercial bank or thrift.”
The commenter does not believe that any solid fuel qualifies as an advanced biofuel under the 2008 Farm Bill. The Farm Bill definition closely tracks the definition in the 2007 Energy Independence and Security Act (EISA). Like the definition in EISA, the 2008 Farm Bill Section 9001 definition of advanced biofuel includes seven qualifying types of fuel. These fuels are listed in the exact same order, except that the 2008 Farm Bill definition replaces references to “ethanol” with references to “biofuel.” Congress also replaced the reference to “biomass-based diesel” in EISA to “diesel equivalent fuel.”
The commenter states these changes did not evidence an intent to broaden the definition to include solid fuels, but rather indicated Congress' growing understanding that there were numerous kinds of advanced biofuels other than ethanol, including cellulosic diesel (e.g., BTL). Thus, it is clear that the 2008 Farm Bill definition builds and improves upon the EISA definition, but that in both cases Congress intended to include only liquid fuels and biogas. While the EISA definition specifically focuses on transportation fuels and the 2008 Farm Bill definition does not, there is no indication that Congress ever intended to include products such as wood pellets, grass pellets, wood chips, or briquettes within the definition in either definition. Rather, under the 2008 Farm Bill, these types of products are either a “biobased product” or simply renewable biomass. The mere act of chipping, pelletizing, or compressing renewable biomass does not convert it into an advanced biofuel. The commenter encourages the Agency to clarify that advanced biofuels are liquid fuels (and biogas) as defined in the 2008 Farm Bill.
Because of the type of technology involved, there are less expensive and better ways than a “pilot project” to design, optimize, and achieve high confidence in a commercial scale design. For example, to produce a quarter-scale implementation, the cost would be 70 percent of the commercial project and would not yield much valuable data for predicting the success at full scale. The physics and fluid dynamics differences between different scales of the same gasifier technology means that data gathered in one scale are only marginally useful in another scale. As a result, different techniques have been developed to design and scale such gasifiers. These techniques lead to an equal level of confidence in the proposed design and implementation as is often garnered from other technologies that are better suited to pilot scale projects. Therefore, the commenter maintains that requiring the advanced biofuel technology “has at least a 12-month (four seasons) operating cycle at semi-work scale” is unwarranted and unacceptable. This criterion assumes that there are no alternative, less expensive, or even better approaches to achieving confidence that the new technology is ready for first-time commercial deployment. In fact, there are such alternative approaches for many technologies. The program evaluation criteria must be flexible enough to provide the acceptance of technologies that do not neatly fit into the “standard” scale-up model that appears to be expected in this proposed rule.
Another commenter states that, although it is generous to add a provision for “semi-work scale,” it is restrictive to include the 12-month (four season) operating history in all cases. To prove the viability of the technologies being used, the commenter suggests that the requirement be changed to require that, with regard to algae projects, the growing, harvesting, and extraction systems be benchmarked by three independent third parties rather than requiring a specific length of operating history without a `proven results' requirement.
The commenter recommends using the definition as put forth in the recently published proposed rule regarding the VAPG Program, 7 CFR parts 1951 and 4284, RIN 0570-AA79. In the proposed rule, “farmer or rancher cooperative” is defined as: “A business owned and controlled by agricultural producers that is incorporated, or otherwise identified by the state in which it operates, as a cooperatively operated business.”
This definition would include farmer cooperatives that are incorporated under general business corporation statutes and yet operate in a cooperative manner and are recognized as farmer cooperatives for purposes of Federal and state taxation and other statutes.
One commenter agrees with the Agency's definition as being a business incorporated as a cooperative that is solely owned and controlled by agricultural producers. However, operational aspects should also be included, consistent with the requirements of the Capper-Volstead Act. This will help prevent the abuse of the term farmer cooperative.
Structure: Generally, participations are loans where the “lead lender” (Lead) sells a participation in a loan to one or more participating lenders (Participant(s)). The sale may be expressed in terms of a dollar amount or a percentage of the loan. The Lead then continues to manage the loan on behalf of itself and the Participants. The relationship among the lenders is typically formalized by a participation agreement, which states in writing that the Participant receives an undivided interest in the loan. The sale of the participation generally occurs after the Lead and the borrower have executed the loan documentation. The Participant is thus dependent upon the Lead for protection of its interests in the loan—the Participant and the borrower do not have privity of contract and thus have no rights or obligations to one another.
“* * * and may include a regulated or supervised lender, acting through its corporate trust department, that otherwise meets the lender eligibility requirements in § 4279.202(c). A lender that otherwise meets the lender eligibility requirements of § 4279.202(c), where the guaranteed and/or unguaranteed portions of the loan are to be funded through bonds, may join with a broker or dealer that is regulated by the Securities Industry and Financial Markets Association and is otherwise a registered broker or dealer within the meaning of the Securities Exchange Act of 1934, in submitting the application required by § 4279.260 and be a party to such application for purposes of assisting the lender in assuring compliance with § 4279.261.”
The Agency considers this as distinct from the typical investment banking scenario where an investment bank secures the financing from outside investors. After the funding is secured, the investment bank has no further involvement with the transaction. Servicing is handled by a trustee who reports to and is controlled by the
Syndication Structure: A loan participation is similar to a loan syndication in that a group of lenders provides funds to a borrower. In a syndication, however, each lender signs the loan agreement with the borrower and thus has a direct legal relationship with the borrower. One of the lenders will be designated as the agent-lender (Agent) for the other syndicate members. The Agent is typically the lender owning the largest percentage of the loan or the lender with enough prestige to form a syndicate of lenders. The Agent may also be the lender with an established relationship with the borrower. It is responsible for structuring the intended credit facility, pricing the loan, developing information pertaining to the borrower, and negotiating and closing the transaction. Thus, all formal communications among the lenders, as a group, and the borrower are conducted through the Agent and all funds are disbursed through and received by the Agent.
• Revising the minimum retention requirement from 50 percent of the unguaranteed portion to 7.5 percent of the total loan amount;
• Enabling the interest rate of the unguaranteed portion of the loan to increase by 500 basis points rather than 1 percent as proposed; and
• Allowing loan guarantees up to 90 percent for guaranteed loans of $125 million or less.
One commenter recommends expanding the definition of eligible lender to make it clear that lenders other than commercial banks are allowed. The definition could be: “Any person or legal entity for the purpose of, or engaged in the business of, lending money, including, but not limited to, commercial banks, insurance companies, credit unions, mutual funds, factoring companies, investment banks, institutional investors, venture capital investment companies, trusts, or other entities designated as trustee or agents acting on behalf of bondholders or other lenders.”
Another commenter is concerned that allowing only commercial banks to participate in the loan guarantee program limits the pool of potential investors and rules out investors such as insurance companies, pension funds, mutual funds, and college endowments. The commenter believes it makes sense to allow the borrower to fund debt from any accredited investor in order to maximize the potential investor base and lower the overall cost of borrowing for biofuel projects.
The commenter proposes that the Agency, the lenders, and the borrowers all remember that the Agency is offering to issue loan guarantees, and that the guidelines not interfere with the traditional asset-based lending process,
Recognizing the current difficulties in securing funding, the Agency has been approving certain bond transactions. The Agency considers that, under the limitations contained in this regulation, guaranteeing these bonds is in keeping with its authority. In order to be more transparent of its willingness to guarantee certain bond transactions, the Agency has modified this regulation accordingly.
Specifically, the lender is required to provide the loan proceeds and service the loan. The Agency will allow a trustee to provide limited servicing only if the trustee is fully under the control of the lender. Holders' rights are limited to receiving payments under the note or bond and if those payments are delinquent making demand for payment on the lender and the government as provided in the regulation. In certain cases where the lender and borrower desire to change the loan terms, the holder is also required to consent to any changes. Loans providing holders any other rights are ineligible for guarantee under this program.
The commenter recommends that, if the Agency includes the first lien position as specified in the proposed rulemaking in the final rule, a guarantee of up to the 90 percent level, as allowed by statute, be provided for loan guarantees on first-of-a-kind technologies.
Another commenter believes what the Agency intended to say in the second part of § 4279.202(j) is that the guaranteed portion of the loan may not be funded with the net proceeds of bonds described in section 142(a) of the Internal Revenue Code of 1986, as a result of the prohibition thereof contained in Section 149(b). The commenter suggests revising § 4279.202(j) to read as follows:
“In addition to complying with the provisions of § 4279.75, and subject to the limitation imposed on the original lender by § 4279.202(k), the guaranteed and unguaranteed portions of the loan shall be fully transferable to any accredited investor and the Agency may not guarantee any portion of the loan funded with the net proceeds of the bond described in section 142(a) of the Internal Revenue Code of 1986. The unguaranteed portion of the loan may be funded with the net proceeds of a bond described in section 142(a) of the Internal Revenue Code of 1986.”
A third commenter states that borrowers should be permitted to access the tax-exempt capital markets for the unguaranteed portion of debt. Tax-exempt project debt appears permitted, but should be explicitly allowed for the unguaranteed portion of the debt. Projects should be afforded every opportunity to lower interest costs, especially by way of Federal, state and local programs designed to meet regional and national priorities such as
Six commenters recommend using the same requirement for minimum retention that is allowed for the guaranteed Business and Industry loan guarantee program where the lender is to retain 5 percent of the loan amount.
One commenter believes, for a multitude of reasons, that this section of the proposed rule is unworkable and relies upon assumptions that are incorrect. The commenter disagrees with the size of the minimum retention requirement and the assumption on which it was based for the following reasons:
(1) The Agency did not do adequate diligence or inquiry of the commercial banking industry when it proposed the 50 percent minimum retention requirement in the Section 9003 NOFA as is evidenced by its recent outreach to commercial banks to determine why they have been unwilling to act as a sponsor/lender of a section 9003 program guaranteed application;
(2) the Agency incorrectly assumed that a commercial bank originating a loan guarantee under the section 9003 program would be less interested in or attentive to the servicing of a loan where the potential loss to the lender in a liquidation scenario would be $12,500,000 (assuming application of the B&I Program's 5 percent minimum retention requirement) versus $50,000,000 (assuming application of the section 9003 program's 50 percent of the unguaranteed portion minimum retention requirement). The commenter asserts that there is not a commercial bank in the U.S. that would devote less attention to a $12,500,000 potential loss than a $50,000,000 potential loss, as either loss is material;
(3) the Agency did not do adequate diligence in setting the minimum retention requirement in the Section 9003 NOFA, because, if it had, it would have understood that for a $250,000,000 loan guarantee, there are likely less than 5 commercial banks in the U.S. that have the capacity to originate such a loan where they were required to retain 50 percent of the unguaranteed portion thereof; and
(4) the Agency failed to do appropriate diligence when it issued the Section 9003 NOFA because there are no commercial banks in the U.S. that are either willing or able to approve through their respective loan committees a $50,000,000 unguaranteed loan for a nonrecourse financing of a first-of-a-kind technology which loan cannot be syndicated or participated.
The commenter suggests that the language should incorporate either “syndication” or “participation,” such that a lender can syndicate and/or participate a portion of the lender's risk position. The commenter also suggests that the language which provides that lenders may syndicate a portion of its risk position to other eligible lenders be revised to provide syndication and/or participation to any accredited investor in order to make § 4297.202(k) consistent with § 4279.202(j).
The commenter states that, in the context of the Bond Loan Model, a bond trustee holds title to and is the owner of 100 percent of the Bond Loan Note and the Collateral Documents securing the guaranteed and unguaranteed portions of the loan for the entire term of the loan. Additionally, a corporate trustee is the agent of and fiduciary for the bondholders, and the commenter states that the minimum retention requirements of § 4279.202(k) should be deemed satisfied as a direct result of the corporate trustee reporting to and being controlled by the underlying bondholders in a way which permits and requires bondholders, subject to Agency retained rights, to exercise their rights as at-risk investors through the trustee. The commenter states that the notion that institutional bondholders working together with a corporate trustee are somehow less accountable to the Agency than an AgBank or other lending institution is simply unfounded. As evidenced by the one trillion dollar annual bond market, which utilizes the Bond Loan Model, there is a demonstrated confidence in and success rate for project finance utilizing the Bond Loan Model. Consequently, the commenter requests that the Agency deem the minimum retention requirement of the section 9003 program to be satisfied by a trustee acting on behalf of the bondholders when a financing is accomplished utilizing the Bond Loan Model.
Based on the above, the commenter recommends revising § 4279.202(k) to read as follows: “The provisions of § 4279.77 apply to this subpart. Lenders may syndicate and/or participate a portion of their risk position to other eligible lenders or accredited investors provided that at no time during the life of the guarantee may the original lender hold an amount of the loan less than the amount required by § 4279.77. The requirements of this section and § 4279.77 will always be deemed satisfied by a trustee where bonds are used to fund a guaranteed loan.”
As previously stated, it is the Agency's position that its current authority does not permit a trustee, whether that trustee is an eligible lender or not, to just hold a beneficial interest for other lenders.
Another commenter believes the fee structure is reasonable in terms of requiring lower fees for lower dollar projects. The commenter suggested periodically reviewing whether the two percent fee for larger projects is warranted to ascertain its appropriateness as projects are funded.
According to the commenter, notwithstanding that the term “person” includes a corporation that is a U.S. citizen, the Agency will continue to look-up the chain of ownership to determine the ultimate individual owners of such entity and the total percentage U.S. citizenship among them, ignoring that the corporate entity is a U.S. citizen. The commenter states that the Agency seemingly went out of its way to complicate and confuse the otherwise clear meaning of the term “person” to require that a further test of U.S. ownership be undertaken by adding a seemingly endless upstream ownership analysis notwithstanding that these entities may be legally incorporated, organized or otherwise established entities of the U.S., which are legitimate U.S. citizens under long-established laws.
The commenter states that this U.S. ownership restriction has no bearing on the creditworthiness of any borrower under the section 9003 program. Rather, in the current adverse economic climate of diminishing numbers of available investors, and in light of President Obama's expressly stated dual intentions to (1) create 5 million new jobs from the renewable energy industries and (2) double the percentage of renewable energy in each of the three years between January 1, 2009 and January 1, 2012, these restrictions fly in the face of the Administration's clearly stated goals.
The commenter, therefore, recommends that § 4279.227(a)(2) either be deleted or revised to read as follows: (ii) Entities other than individuals must be at least 51 percent owned by persons who are either citizens as identified above or legally admitted permanent residents residing in the U.S.” The commenter noted that comparable Department of Energy and Department of the Treasury loan guarantee and/or grant programs do not contain similar citizenship restrictions.
The commenter believes that this solution more specifically mirrors the original intent, as stated in the definition of `biorefinery' in the 2008 Farm Bill.
Two other commenters recommend considering existing equipment, building, and land at appraisal value when calculating the equity requirements of the borrower.
The commenters recommend eliminating the requirement for 20 percent cash equity and allowing applicants to include preconstruction costs as contributed equity.
One commenter believes that the requirement that the project must have cash equity of not less than 20 percent of eligible project costs should be changed to allow for non-cash equity, and that “eligible project costs” should not include goodwill or non-proven or non-benchmarked technologies. The commenter states that the latter could be included as a portion of the required equity, but that they believe that the demise of the dotcom industry lay in the fact that values were attributed to unproven ideas and that they are not interested in allowing history to repeat itself, especially with something as important as energy security.
1. The level of guarantees in the proposed rule may be appropriate for existing, commercially available technologies. But they do not provide sufficient risk reduction for new, emerging technologies. That is why the authors of the statute specified in Section 9003, paragraph (e)(2)(B)(iii) that “The Secretary may guarantee up to 90 percent of the principal and interest due on a loan guaranteed under [this] subsection.”
2. Low guarantee amounts, such as those proposed by the Agency, limit the number of lenders who will be willing to assume the risks associated with the high capital costs of building and operating a facility that employs a new, first-of-a-kind technology that has not been commercially proven. This makes capital harder to get, and means fewer projects will be funded. As a result, new technologies will be deployed much more slowly. The public interest is not served by this approach.
3. Guarantee amounts less than 100 percent create an additional burden for first-of-a-kind technology projects by requiring the nearly impossible task of placing unguaranteed debt in the market. While commenters believe that funding these unguaranteed portions of debt might be possible in the taxable and tax exempt bond markets, it is not at all clear that the very tight credit market will in fact be receptive to unproven technology risk. There is, therefore, a real risk that projects could succeed in obtaining an Agency loan guarantee, yet end up failing to fund the unguaranteed debt in any market and fail to secure financing.
4. Without a 90 percent guarantee, it is unlikely that first-of-a-kind technology projects will secure financing.
5. At a 90 percent level, the amount of unguaranteed debt could be more easily placed in the market and should keep lenders with some “skin” in the deal. One commenter points out that the Senate version of this program provided for a 100 percent guarantee. The guarantee was reduced to 90 percent in conference committee due to pressure from House negotiators who felt that not only project developers, but banks as well, should have “some skin in the game.”
6. The decision to limit the guaranteed percentage to 60 to 80 percent with a maximum of 60 percent for loans greater than $125 million leaves a significant amount of unguaranteed debt that banks are not willing to accept.
One commenter suggests as an alternative, loan guarantee percentages could be adjusted higher depending upon the specific circumstances of a project. For example, a maximum guarantee could be offered under conditions when a high ratio of equity investment is secured, where the use of proven technology removes technology risk, and where there is a demonstrated ability to accelerate return on investment.
Two commenters believe that with the oil spill in the Gulf, prices at the pump creeping up in preparation for the summer travel season, two wars in the Middle East, and a U.S. Department of Energy loan guarantee program that has to date proven unworkable for financing biorefineries, the U.S. can no longer delay efforts to commercialize promising technologies that can lessen our impact on the environment and increase our energy security.
One commenter recommends that the loan guarantee percentage be a maximum of 90 percent per the statute. The commenter states that they make this recommendation based on their experience seeking debt financing for their project. The commenter states that they have been told by most lenders that 80 percent is insufficient, given that the lender must hold no less than 50 percent of the unguaranteed portion of the loan. At an 80 percent guarantee, that represents 10 percent of the total loan. Unlike venture capital, banks are in the business of lending without the expectation of a loss of capital. When combined with the Agency first lien proposal, the guarantee is not perceived as much of a guarantee by the bank holding the unguaranteed portion. Given the perceived technology risk, the bank perceives that they are taking a 10 percent capital risk in such a deal. As a result, the program requirements are not in alignment with the banking industry requirements for lending. In addition, the maximum percentage should not decrease with the size of the loan. As it has been implemented in the NOFAs, projects larger than a certain size, will only achieve a lower percentage guarantee. Given the conflicts noted above with standard banking criteria, these larger projects cannot be financed. Too much would be at risk for the bank and hence they cannot do the deal. At the same time, equity investors cannot make up the difference because doing so will increase the require IRR to a level that is not achievable. Hence, the guarantee percent should be 90 percent no matter whether it is a $40 million loan or a $250 million loan.
One commenter states that section 9003 permits guarantees of up to 90 percent of the principal and interest, but noted that § 4279.229 provides for guarantees of a lower amount. The level of guarantees may be appropriate for existing, commercially available technologies; however, these levels fall significantly short of providing sufficient risk reduction for new, emerging technologies, and will not incentivize private institutions to lend. Low guarantee amounts limit the number of lenders who will be willing to assume the risks of capital-intensive, first-of-their-kind projects. As a result, entire fledgling industries may disappear and technologies will be deployed slowly and perhaps not at all.
The commenter states that the rule should provide for the full 90 percent guarantee for the principal and interest up to $250 million and, at a minimum, should provide for a 90 percent guarantee of up to $125 million and 80 percent guarantee of principal and interest up to $250 million. The commenter states that it is important to note that the Senate version of the program provided for a 100 percent guarantee. The guarantee was reduced to 90 percent in conference due to House negotiators wanting project developers and lenders to have some “skin in the game.” This is not objectionable, but the intent of Congress was clear that the guarantee of a significant amount of the loan is necessary for lenders to finance new technologies.
Two commenters state that insufficient or too low loan guarantee amounts create a major hurdle for first-of-kind technology projects by requiring the placement of significant amounts of unguaranteed debt in very challenging markets. The commenters believe that funding unguaranteed portions might be possible in the taxable and tax exempt bond markets, but that it is not at all clear that these volatile markets will in fact be receptive to unproven technology project risk. There is, therefore, a very real risk that projects that succeed in obtaining a partial Agency loan guarantee nevertheless end up failing to fund the unguaranteed portion in any market. Furthermore, the tiered structure of the guarantee levels is based solely on the size of the loan amount, without regard to overall capital structure. This can create a situation where the Agency guarantee is exposed to a disproportionate share of project risk relative to private capital. For example, on a $200 million project, with a capital structure of 75 percent debt and 25 percent equity, the Agency guarantee covers 60 percent of the loan amount, or $90 million. This reflects nearly double the investment of equity providers. However, if the guarantee percentage were based on the capital structure, with the guarantee percentage growing to 80 percent on projects that have a minimum of 40 percent equity, the Agency's exposure on the project is the same, at $90 million, and yet less than the exposure of equity providers.
The commenters recommend adhering to the statutory language to provide maximum flexibility for project finance and suggest adopting a tiered guarantee coverage based on the overall capital structure, for example:
This structure would allow the Agency to more fully employ its statutory ability to covering up to 90 percent of a loan for strong projects with a significant equity, where private capital contributions are strong. For large projects, as most commercial scale advanced biorefinery projects will be, it still affords a sizeable unguaranteed exposure to lenders. This will ensure adequate risk sharing and, therefore, due diligence by private capital sources whether in the form of unguaranteed loans or equity participation.
One commenter states that the percentage of the loan guarantee should not be limited beyond what the statute sets forth by amount or otherwise. Lowering the percentage for larger loans would unfairly penalize new technology and feedstock that, by the nature of being new, require larger initial funding. In an already difficult lending environment, the proposed limitations would have a deleterious effect on economic-growth oriented innovation. The rural credit crunch has made it imperative for the Agency to guarantee a very high percentage of project costs or offer significant grants in conjunction with those guarantees. The construction of large biofuels facilities should be encouraged.
One commenter believes that the purpose of the loan guarantee program should be to bring alternative energy technologies on line as quickly as possible. Regrettably, current loan guarantee guidelines, while perhaps appropriate for existing, commercially available technologies, do not provide sufficient risk reduction where they are needed most—in the commercial demonstration of new advanced biofuel technologies. That is why the authors of the statute specified that the secretary may guarantee up to 90 percent of the principal and interest due on the a loan guaranteed under this subsection (Sec. 9003(e)(2)(B)). Therefore, the rule should be modified to allow for guarantees up to the maximum amount allowed by statute: 90 percent of all loans up to $250 million. If the Agency wishes to require a first lien position, then a guarantee of up to the 90 percent level is certainly warranted for loans intended to assist these emerging technologies at the pilot or commercial demonstration stage.
One commenter questions whether the guarantee amounts are too low based on size of the project (
One commenter states that the Agency should consider applying the 20 percent non-guaranteed requirement across the board, and not decrease the percentage guaranteed as the amount of the debt increases, as currently proposed in § 4279.229. By decreasing the amount guaranteed by the Agency as the principal amount of the loan increases (as currently proposed), borrowers will be less likely to find an eligible lender that is willing to retain the un-guaranteed debt. At the maximum level of $250,000,000 (resulting in a 60 percent guaranty), a lender would be required to retain at least $50,000,000 of the loan (50 percent of the non-guaranteed portion), assuming the lender is able to find participants for the other 50 percent of the non-guaranteed debt, and possibly the full $100,000,000 if no participants are found. The commenter states that the likelihood of finding eligible lenders that are willing to participate at these levels is extremely unlikely.
One commenter states that, under the Commercial Loan Model, it is likely that any portion of a loan purchased or funded by a commercial bank will bear interest at a variable rate such as the Prime Rate or the LIBOR, while any portion of the loan funded or purchased by an institutional investor will likely bear interest at a fixed rate. Accordingly, the commenter recommends amending § 4279.231 to provide as follows:
(2) The interest rate for both the guaranteed and unguaranteed portions of the loan must be the same type (
Another commenter also recommends allowing different rates for the guaranteed versus unguaranteed portions of the loan and allowing the market to make the determination, given that the perceived risk for guaranteed versus unguaranteed risk is a purely market-based phenomenon, and changes from time to time. In the Loan Guarantee Conditional Commitment agreement, a maximum percentage could be specified and tolerated, with that percentage being determined by the maximum rate that still allows the project to be financially successful based on the submitted pro formas. The determination of this figure could be a requirement of the application process to be determined by the lender as part of the normal due diligence and sensitivity analysis.
One commenter notes that, over the 10-year period from May 2000 through May 2010, the spread between the AAA and B indices has been approximately 532 basis points and the spread between the AAA and BB indices has been approximately 335 basis points. The underlying credit rating of a biorefinery is reflective of the lack of investment grade off-takes or related purchase contracts that might otherwise elevate the underlying credit level of the biorefinery to investment grade (that is, BBB or greater). Consequently, the commenter suggests it would be a rare occurrence that the blended rate on the entire guaranteed loan would not exceed the rate on the guaranteed portion of the loan by more than 1 percent. The commenter states that without over-collateralizing the unguaranteed portion of the loan, it is not likely that the spread differential on the guaranteed and unguaranteed portions of the loan will ever be within 1 percent. Therefore, the commenter recommends deleting § 4279.231(a)(3).
Several other commenters recommend eliminating the current proposed 1 percent rate differential between guaranteed and non-guaranteed portions of the debt.
One commenter states that banks have told them that the provisions limiting the delta between the interest rate on the guaranteed portion of the loan and the weighted average interest rate of the full loan amount to 1 percent gives them significant pause in moving forward. Lenders would like to be able to set the interest rate for the non-guaranteed portion at market rates.
One commenter states that, because the guaranteed portion is secured by the United States, it is unrealistic to expect market rates for the guaranteed and non-guaranteed portions to be within 1 percent of each other.
One commenter states market-based interest rate differentials on the guaranteed and unguaranteed portions will be significant, reflecting the difference between a AAA-rated, full faith and credit guarantee of the United States on the one hand and sub-investment grade rated technology project debt on the other. (Current market differentials are estimated to be greater than 6.0 percent.)
One commenter states that the blended rate method also gives a disadvantage for the larger loans; since the percentage of guarantee is less, the difference in the interest rates between guarantee and unguaranteed must be less than for the smaller loans with a higher percentage of guarantee. The interest rate on the unguaranteed portion will be influenced by many factors; lenders will have to price it on a case by case basis; and it could vary substantially depending on the financial strength, type of technology, size of loan, type of lender, etc., so the government should let the market determine what that interest rate difference should be on the unguaranteed portion.
One commenter states that, in the event that construction cost increases or changes in the proposed project design are required for successful commercial operations, rather than not allowing any restructuring of the loan and guarantee, as long as a revised budget and financial plan meets the required criteria and would have qualified for the loan and guarantee as adjusted if it were a new application, such changes and restructuring should be allowed.
With regard to the commenter's suggestion that the Agency commit to responding to and completing its review within 2 weeks of receiving an
Economic Feasibility—remove the requirement to document that all woody biomass feedstock cannot be used as a higher value wood-based product. Add a section on “feedstock risks.”
Market Feasibility—redefine the risk section to specific market risks, including competitive threats and advantages.
Technical Feasibility—Delete “any constraints or limitations in the financial projections” and move to the Financial Feasibility section. Add a category on “design-related risks.” Add a section on permits required and other environmental or ecological constraints.
Financial Feasibility—add a section on “sources and uses of funds” and “matching funds.” Add a section on “borrower's business strategy.” Redefine the risk section to include only “baseline production outputs, borrower financing plan, tax issues, government regulations, and borrower as a company.”
Management Feasibility—further define the three levels of management: Ownership, management, and provide an organizational chart showing all staff required to manage and operate the biorefinery with a spreadsheet showing annual wage rates for each employee category. Change the management risk category to include: Changes in management, strengths and weaknesses of the management team, changes in ownership of the company, conflicts of interest.
Business Plan—Eliminate the Business Plan requirement as all elements are present in the Feasibility Study.
Economic Analysis—This criterion should be eliminated, and all elements moved to the financial feasibility section of the feasibility study.
1. Economic Feasibility (Section B of Table 1). With regard to the recommendation to remove the requirement to document that all woody biomass feedstock cannot be used as a higher value wood-based product, the Agency disagrees, but instead has revised the rule to clarify that the “higher value product” only applies to woody biomass feedstock from National Forest system lands or public lands.
With regard to the recommendation to add a section on “feedstock risks,” the Agency agrees that these risks need to be addressed and has revised the feasibility study accordingly.
2. Market Feasibility (Section C of Table 1). With regard to the recommendation to redefine the risk section to specific market risks, including competitive threats and advantages, the Agency agrees with the comment and has revised the feasibility study accordingly.
3. Technical Feasibility (Section D of Table 1). With regard to the recommendation to delete “any constraints or limitations in the financial projections” from this section and move it to the Financial Feasibility section, the Agency agrees with the comment and has revised technical feasibility accordingly. The Agency notes that the remainder of this element (and any other facility or design-related factors that might affect the success of the enterprise) has been removed, but its intent is covered by the addition of design-related risks as discussed in the following paragraph.
With regard to the recommendation to add a category on “design-related risks,” the Agency agrees with the comment. The Agency has revised technical feasibility by adding “risks related to design-related factors that may affect project success” and moving the remaining segment of the fourth section under Section (D) of Table 1 (“Any constraints or limitations in the financial projections”) to the Financial Feasibility section.
With regard to the recommendation to add a section on permits required and other environmental or ecological constraints, the Agency does not agree with commenter. The rule requires the lender to submit Exhibit H of 7 CFR part 1940, subpart G, to address environmental issues and permits. Section B of the feasibility study requires the identification of project impacts on the environment.
4. Financial Feasibility (Section E of Table 1). With regard to the recommendation to add a section on “sources and uses of funds” and “matching funds,” the Agency agrees with the suggestions to add reference to the “uses of project capital” and has revised the rule accordingly. However, the Agency disagrees with the suggestion to add a section on matching funds because matching funds are already addressed in Section E of Table 1.
With regard to the recommendation to add a section on “borrower's business strategy,” the Agency disagrees because the borrower's business strategy is sufficiently covered as part of the borrower's business plan.
With regard to the recommendation to redefine the risk section to include only “baseline production outputs, borrower financing plan, tax issues, government regulations, and borrower as a company,” the Agency disagrees with the commenter. The Agency requires the risk categories identified to assist with the evaluation of the feasibility of the project and technology.
5. Management Feasibility (Section F of Table 1). With regard to the recommendation to further define the three levels of management, the Agency is satisfied that sufficient disclosure of management and ownership structures is provided for in the feasibility study and the lender's written credit analysis.
With regard to the recommendation to change the management risk category to include changes in management, strengths and weaknesses of the management team, changes in ownership of the company, and conflicts of interest, the Agency will add management's strengths and weaknesses but disagrees with commenter's other suggestions. The Agency notes that “Conflicts of Interest” was already included in the proposed rule and remains in this interim final rule.
6. Business Plan (proposed § 4279.261(g)). With regard to the recommendation to eliminate the Business Plan requirement as all elements are present in the Feasibility Study, the Agency disagrees with the commenter's suggestion. The business plan is prepared by the borrower, while the feasibility study is prepared by a third-party expert and is an evaluation of the project and the company. The Agency notes that the rule allows a business plan to omit any information that is included in the feasibility study.
7. Economic Analysis (proposed § 4279.261(i)). With regard to the recommendation that this section be eliminated and all elements moved to the financial feasibility section of the feasibility study, the Agency agrees with the commenter and has revised the rule to incorporate the economic analysis into the feasibility study.
The commenter does not believe that the Agency has the statutory authority to require that applicants document that their woody biomass could not have been used in a higher-value product. The Farm Bill definition makes clear that such a restriction could only apply to applicants seeking payment for advanced biofuels derived from woody biomass sourced from Federal land. The commenter urges the Agency not to finalize a provision so clearly contrary to express statutory language.
Statutory authority aside, if the Agency chooses to finalize such a scheme, the commenter suggests that it not categorically exclude biomass that could be used in higher-value products. The commenter believes that there is some woody biomass that, while it could be used as a higher-value wood based product, will not be for numerous reasons, including market access. The rule should allow for loans for advanced biofuel facilities using renewable biomass that could be used as inputs for higher-value products, but that have not been previously utilized on a facility-specific or regional basis.
A number of commenters characterized the scoring criteria as unrealistic, presenting obstacles or being contrary to the program's goals, etc. Some of these commenters illustrated their concerns by discussing specific scoring criteria. In such instances, such discussions are included in the specific scoring criteria. Commenters also suggested numerous additions to the scoring criteria. The general comments and proposed additions are addressed first, followed by comments associated with the specific scoring criteria.
The commenter disagrees that a higher equity percentage indicates a higher and better commitment to the project. Given that the equity investors in such projects do not invest with the expectation to lose their investment, since these are not venture investors, a $100 million project that requires $20 million in cash equity for example, is a major commitment. A $30 million equity participation does not indicate any more commitment. However, it does substantially increase the IRR requirement from the cash investor and that can provide undue financial burden on the project and make it financially unfundable for no real benefit. A higher percentage for a much smaller project could represent a more sincere commitment, but that is not true in this case.
To illustrate potential issues with the rule as proposed, the biofuels industry has experienced significant road blocks when navigating the Department of Energy loan guarantee program application process in this regard. Therefore, the commenter is asking for the following inclusion in The
“Loan guarantee applications for emerging technologies, such as advanced biofuels, should not be evaluated against more mature technologies, such as wind or solar. The liquid fuels marketplace does not operate within a framework that lends itself to long-term, fixed-price forward contracting mechanisms; therefore, DOE should not require these contracts as evidence of `reasonable prospect of repayment' for biofuels projects. The Committee recommends that this program also be expanded to include eligibility for renewable chemicals and biobased products in addition to biofuels.”
Another commenter encourages the Agency to consider the appropriateness of off-take agreements in the fuels market. The commenter states that their experience has indicated that such requirements are much more challenging for renewable fuels than with renewable electricity, which has been financed largely through long-term power purchase agreements. The commenter urges the Agency to broaden the scope of what it considers a demonstration of an established market for a fuel. Off-take agreements are clearly one way that such a market can be established. The commenter believes that EPA's large RFS2 mandates represent “legislated demand” that should sufficiently demonstrate that a market exists. RFS2 relies upon a fungible, liquid market for renewable fuels that is fundamentally inconsistent with a requirement that obligated parties actually purchase the fuel and take delivery. Rather, obligated parties demonstrate compliance through submission of “RIN” credits, which renewable fuel producers generate when they produce qualifying fuels. Demand for these RIN credits functions in the same way as an off-take agreement, as both serve as a market outlet for the fuel. Given forecasts on meeting RFS2 targets through 2022, it does not appear that advanced biofuel production will exceed mandates. Thus, every gallon of advanced biofuel produced up to the mandates will have a guaranteed market outlet. Even absent the RFS2 (as well as low carbon fuel standards in California and the northeastern states), the Agency should consider drop-in fungible fuels to have an established market (equivalent to a dedicated off-take agreement) at no less than the value of the fossil-fuel which they replace. Indeed, since synthetic hydrocarbons like BTL offer superior performance characteristics, including lower conventional pollutant emissions than conventional fuels, a market premium would be justified. While non-fungible fuels such as ethanol that can only be blended up to certain levels with conventional fuels have a demand ceiling (absent dedicated infrastructure, such as that needed for E-85), fungible fuels such as BTL that are fully compatible with existing fuels and infrastructure will have access to existing fossil fuel markets. While the commenter recognizes that future fossil fuel prices alone may not sufficiently demonstrate the financial feasibility of a project, the commenter urges the Agency to recognize this market “floor” in its scoring criteria for demonstrating an established market for an advanced biofuel project.
With regard to the comments made concerning the Renewable Fuel Standard program, the Agency acknowledges that the Renewable Fuel Standard program may establish a commodity market for renewable fuel standard biofuels as a whole. However, for the purposes of the Biorefinery Assistance Guaranteed Loan Program, the Agency is looking at whether the borrower has established a market for its biofuel and byproducts; that is, the Agency is looking for the establishment of an individual market for the borrower's biofuel and byproducts. The commodity market created by the Renewable Fuel Standard program does not ensure there will be revenue generated for the specific project in the application. On the other hand, the Agency seeks to further the renewable fuel provisions of the Section 9003 program by, as has been noted previously, requiring the advanced biofuel to meet an applicable renewable fuel standard as identified by the EPA in order to receive points under this scoring criterion.
The Agency notes that it does not have the authority to modify the Department of Energy's Innovative Technology Loan Guarantee Program as requested by one commenter.
1. If the application has a commitment for at least 40 percent of the biofuel produced from the project; a commitment for at least 40 percent of the biobased byproduct produced from the project; and a commitment for at least 60 percent of the feedstock to be used in the project, then the application will be awarded 5 points.
2. All commitments must be for at least 3 years.
3. Notwithstanding other qualifications of this criterion, ethanol, biodiesel, and distiller's grains shall be exempt from any purchase commitment.
The Agency disagrees with the recommendation for including a requirement that all commitments must be for at least three years, because it could discourage the introduction of advanced biofuels produced from new feedstock.
As noted in the previous response, the borrower needs to demonstrate that the borrower has established a market for the borrower's advanced biofuel and byproducts produced. Furthermore, the selection criteria in the statute refer to “the advanced biofuel and the byproducts produced” without distinguishing between new and established biofuel. Therefore, the Agency disagrees with the commenter's recommendation for providing an exemption from the purchase commitments.
1. If the area that will supply the feedstock to the proposed biorefinery does not have any other advanced biofuel biorefineries using the same or similar feedstock, award 10 points.
2. If there are other advanced biofuel biorefineries using the same or similar feedstock located within the area that will supply the feedstock to the proposed biorefinery, award 0 points.
Several commenters state that the points awarded to this criterion should be changed or given 3 to 5 points. Different technologies that utilize the same biomass should not be excluded because another applicant used it first.
Another commenter recommends revising the language to include some threshold level instead of simply a “first mover” requirement. The intent is to establish multiple energy crops on a commercial scale and as written the first user of a new feedstock would qualify regardless of the size of their biorefinery and second user would not. The commenter states that, in addition, you want to encourage the further expansion on the feedstock, preferably with even new and better processes that make even more efficient use of the feedstock.
One commenter is concerned that the concept of providing points to projects that purchase 60 percent or more of their feedstock from producer associations or cooperatives and sell 60 percent or more of the products precludes benefits associated with purchasing feedstock from independent producers, farmers, etc., who stand to benefit significantly from such purchases. It is also not practical to require 60 percent of revenue generated to be from selling products to producer associations or cooperatives. Typical biorefinery products are sold to obligated parties to generate maximum revenue. In general, this criterion may favor projects that do not bring as much benefit to local farmers and producers and may have higher risk through lower product revenue.
One commenter suggests that this scoring criterion for supply and off-take agreements through cooperatives be eliminated. Because of the capital intensity of the first commercial projects, the entire entrepreneurial community needs to be engaged. Also, because these refineries utilize commodity inputs and are producing liquid fuel that fluctuates daily in price, it is very difficult to get supply and off-take agreements at fixed prices.
One commenter states that, given the challenges of achieving financing for projects, it is unwise to limit scoring to projects that are so heavily weighted to such transactions with producer associations and cooperatives. It is more important to assist the commercialization of new technologies and make the projects attractive to investors. In many cases, biomass feedstock is not yet available by way of producer associations and cooperatives. Hence, such a procurement plan would be considered unduly risky to financiers. At the same time, there is no guarantee that producer associations and cooperatives will provide the best outlet market for products to be sold. It is more important to make sure that these projects have the best possible chance of succeeding financially so that they can be financed. Having the most flexible sources of feedstock suppliers and off-take partners is the smartest way to get projects off the ground. The proposed constraints might make sense for a different program designed to support already commercialized technologies where the quid pro quo for Agency assistance would be to support such supply and off-take entities. The commenter states that it is unwise to try to achieve too many Agency goals in one program when the financing challenges are already very high.
One commenter believes this criterion unfairly limits the sale of biofuels and biofuel byproducts. The commenter believes that both products should be able to be sold to individual farmers, community residents, small local businesses, power generation facilities, hospitals, educational institutions, municipalities, traditional oil refineries, etc. Selling the biofuel to a larger and more diversified number of users will help encourage faster acceptance and adoption of biofuels by the public and industry thereby increasing demand for even more locally produced biofuels.
This same commenter also states that the provision for 60 percent of the dollar value of the feedstock will be supplied by producer associations and cooperatives unfairly and unnecessarily limits it to mainly producer associations and cooperatives. Small independent family farms and landowners should be able to equally provide feedstock to a biorefinery funded through this program. The number of small farms in the United States, particularly in the East, is growing. Being able to sell feedstock to the biorefinery would provide small farmers and landowners an additional source of potential income. It would also help keep land actively farmed in some communities.
One commenter states that waste material, as a feedstock, does not lend itself to contracts with producer associations or cooperatives in the same way that biomass from crop or plant residues do. The commenter urges the Agency to adopt an alternative metric for feedstock that do not ordinarily have a nexus with producer associations and cooperatives, so that the investment in rural communities that the Agency seeks to encourage can come from the broadest possible sources.
1. Award 2 points for an application with at least two support letters from producer associations or cooperatives.
2. Award 4 points for an application with at least 20 percent of the dollar value of the feedstock purchased from a producer association or cooperative.
3. Award 4 points for an application with at least 20 percent of the dollar value of the biobased byproducts sold to a producer association or cooperative.
4. Notwithstanding other qualifications of this criterion, if the applicant is a producer association or cooperative, award 10 points.
With regard to the request to award points based solely on the borrower being a producer association or cooperative, the Agency disagrees because the change in the rule to allow the borrower to meet one of the three criteria allows such a borrower to be awarded points under this criterion by working with another producer association or cooperative.
With regard to the suggestion to increase the points awarded from 5 to 10, the Agency considers the points associated with this criterion appropriate relative to the other scoring criteria and has not changed the points awarded under this criterion.
1. If the borrower's cash equity injection plus other resources results in a debt-to-tangible net worth ratio equal to or less than 3.00 to 1, but greater than 2.75 to 1, award 11 points.
2. If the borrower's cash equity injection plus other resources results in a debt-to-tangible net worth ratio equal to or less than 2.75 to 1, but greater than 2.50 to 1, award 18 points.
3. If the borrower's cash equity injection plus other resources results in a debt-to-tangible net worth ratio equal to or less than 2.50 to 1, award 25 points.
With regard to the suggestion to delete the deduction of 10 points for the use of other Federal direct funding, the Agency wants to encourage participation from non-Federal sources and to diversify risk to Federal funds. Therefore, the Agency disagrees with the suggestion to delete this deduction.
With regard to adding an additional level (
1. If the production of advanced biofuels from the approval of the application would have a positive impact in one of the three impact areas (resource conservation, public health, and environment), award 2 points.
2. If the production of advanced biofuels from the approval of the application would have a positive impact in two of the three impact areas, award 6 points.
3. If the production of advanced biofuels from the approval of the application would have a positive impact in all three of the impact areas, award 10 points.
In addition, the Agency has added a provision to deduct 5 points if the feedstock for the proposed project can be used for human or animal consumption. The Agency is adding this provision because such feedstocks are considered to have significant enough negative impacts that the Agency seeks to discourage their use.
However, the Agency has added a provision to this criterion that would result in no points being awarded if the feedstock to be used is wood pellets. While the Agency acknowledges the eligibility of wood pellets, the emphasis of this program is new and emerging technologies. The Agency further notes that wood pellets can be considered under other programs.
1. If a project's average wage is above the median household wage in the county and contiguous rural counties, award 15 points.
2. If a project's average wage is equal to or below the median household wage in the county and contiguous rural counties, award 0 points.
With the respect to commenter's suggestion to use the median household wage in the county, the Agency agrees with the commenter that it is appropriate to look at the median household wage for the county, and not to include the median household wage for the state, because the county median household wage is more reflective of local economic conditions. The Agency has revised the rule accordingly.
With respect to the commenter's suggestion to include contiguous rural counties, the Agency disagrees with the commenter because economic conditions in the contiguous counties may differ significantly from the project county. Thus, the Agency has not revised the rule with respect to this specific comment.
1. If more than 20 but less than or equal to 50 percent of the biorefinery's owners are local owners, award 6 points.
2. If more than 50 percent of the biorefinery's owners are local owners, award 10 points.
3. A biorefinery that has as its majority owner a publicly traded entity would be awarded no points.
One commenter states that, in many cases, these projects require significant capital to complete and eliminating good projects because they do not have local ownership does not seem to support the objectives of creating a biorefinery industry.
One commenter states that these projects need to be able to take full advantage of the entire range of investment opportunity. According to the commenter, this criterion places limitations on where supporting investment comes from. As a result, the commenter believes that there is a significant likelihood that projects most likely to succeed (and the best deal to the taxpaying public) will be outscored by niche projects that will have limited impact on rural development or of filling advanced biofuel voids. Such an outcome seems to contradict the purposes of the program.
With regard to reducing the number of points awarded for this criterion, the Agency has considered the points proposed for this criterion relative to the other criteria and, as discussed in the response to the previous comment, has reduced the points for this criterion.
With regard to the ability to offer the agricultural industry a compelling reason to produce feedstock, the Agency has determined that it is not appropriate for this program to address this proposed criterion because USDA has other programs that address this area.
With regard to including a criterion specific to the likelihood of leading to high capacity volumes, the Agency is satisfied that this is sufficiently addressed in § 4279.265(d)(10). The ability of a project to be replicated will increase the likelihood that future facilities will be able to have high capacity volume.
1. Demand for new feedstock. To what extent will the project drive the development of new agricultural-related energy crops?
2. Revenue opportunity. What are the volume needs and expected value of those crops in the vicinity of the project?
3. Job creation. How many additional rural jobs will result from the project?
4. Ease of adoption. How fungible are the new crops with respect to existing agricultural practices (use of existing equipment, storage and handling, planting and cultivating, nutrient and moisture requirements, etc.)?
5. Sustainability. To what extent is the plant and feedstock system a longer term proposition? This includes carbon intensity, use of marginal lands/double crop systems/use of waste or residue, and market outlook for products.
The commenter also states that the scoring system could be a program obstacle and recommends a more basic structure. The commenter states that DOE seems content with promoting the high risk emerging technology and niche application projects and that the Agency should measure projects based upon the mission of revitalization of the rural economy and promote projects with the greatest chance of success. The commenter recommends a scoring system based on the following:
1. Ability to deploy unutilized crop options or create new energy crops that offer new opportunities for rural America.
2. Ability to be scaled and replicated with limited technology risk.
3. Ability to provide environmental benefits and avoid environmental and social consequences.
4. Ability to be accepted into the farming community and be easily integrated into current agricultural practices.
5. Ability for the finished products to be fungible in the current marketplace, while also adding significant volumes to the market.
6. Ability to attract high ratios of equity or other investment.
7. Ability to generate attractive returns and to offer compelling reasons for financing market participation.
With respect to the comment on the fees, the Agency disagrees with the suggestion to lower annual or other fees if projected job creation levels are exceeded. The fee structure is independent of the number of jobs created and is based on the cost of implementing the program. Any change in fees would have an impact on the subsidy rate for the program, which determines dollars available. Further, if fees were tied to number of jobs created exceeding projected jobs, applicants would have an incentive to project fewer jobs being created.
On the other hand, one commenter agrees with the removal of cellulosic feedstock as a scoring criterion. According to this commenter, all advanced biofuels should compete on a “level playing field,” and cellulosic ethanol has already received substantially greater government investment when compared to other advanced biofuels that could serve as “drop-in” replacements for existing petroleum fuels.
One commenter points out that cellulosic biomass is the most abundantly available renewable energy source in rural America and should be favored in the scoring system.
The commenter, therefore, recommends allowing ranked applications that are not fully funded due to budgetary authority limitations to roll over into subsequent fiscal year budget cycles, without requiring a reapplication. Such applications could be re-ranked against new applications to ensure they are still highly ranked, and that the process remains competitive. They should not, however, be competitively disadvantaged and forced to re-apply to subsequent application periods.
Commercial lending in the U.S. is virtually non-existent due to the current economic conditions. The inability to obtain working capital and construction funds has significantly slowed the progress of development of alternate fuels. Funds have become available in terms of grants for research and development (as opposed to the commercial applications), and the current financing opportunities are based on grants with milestone payments but no repayment obligation and has primarily supported the academic community and government laboratories. The commenter states that: (a) The technologies that have been created have no value until there is a viable market for them, and (b) laboratories and universities have not, to date, shown the ability to commercialize the algae industry. Their purpose is restricted to research. The commenter believes that a portion of the funds allocated for loan guarantees should be converted to direct loans to individuals and companies who plan to build products in the U.S. and employ U.S. workers. The guidelines for required documentation have already been stated; the only difference is that the Agency would be taking on the role of the lender, subject to servicing arrangements which would probably be handled by a third party service provider on behalf of the Agency. The risk would be greater than with a loan guarantee, but the rewards would include the ability to negotiate loans with shorter terms, requiring the borrowers to generate revenue and loan repayment history so that, when the economy strengthens, they are `bankable' or investment-grade companies. The commenter believes that this program will further support the concept that private companies and investors will be attracted to invest in these companies once they have proven themselves to be credit-worthy.
The commenters recommend allowing the guaranteed and unguaranteed portions, whether capital markets offerings or bank loans, to be funded disproportionally in order to reduce construction period interest costs for the projects. To address the potential mismatch in exposure based on differing funding schedules, the Intercreditor Agreement will require that upon a default the under-funded lender (likely to be the guaranteed bank lender) fund its pro rata share of the loans (or purchase pro rata participations from the over-funded lender). As is typical for project financings, a requirement that satisfactory debt and equity commitments for the full funding of the project budget are entered into at closing should also be added to the list of program requirements.
The Agency is interested in receiving comments on all aspects of the interim rule. The area in which the Agency is seeking specific comments is identified below. All comments should be submitted as indicated in the
1.
2.
Biorefinery assistance, Loan programs—Business and industry, Rural development assistance, Rural areas.
For the reasons set forth in the preamble, title 7, chapter XLII of the Code of Federal Regulations, is amended as follows:
5 U.S.C. 301; and 7 U.S.C. 1989.
The purpose and scope of this subpart is to provide financial assistance for the development and construction of commercial-scale biorefineries or for the retrofitting of existing facilities using eligible technology for the development of advanced biofuels.
Except as specified in paragraphs (a) through (l) of this section, all loans guaranteed under this subpart shall comply with the provisions found in §§ 4279.1 through 4279.84 of this title.
(a)
(i) Biofuel derived from cellulose, hemicellulose, or lignin;
(ii) Biofuel derived from sugar and starch (other than ethanol derived from corn kernel starch);
(iii) Biofuel derived from waste material, including crop residue, other vegetative waste material, animal waste, food waste, and yard waste;
(iv) Diesel-equivalent fuel derived from renewable biomass, including vegetable oil and animal fat;
(v) Biogas (including landfill gas and sewage waste treatment gas) produced through the conversion of organic matter from renewable biomass;
(vi) Butanol or other alcohols produced through the conversion of organic matter from renewable biomass; and
(vii) Other fuel derived from cellulosic biomass.
(i) Composed, in whole or in significant part, of biological products, including renewable domestic agricultural materials and forestry materials; or
(ii) An intermediate ingredient or feedstock.
(i) A technology that is being adopted in a viable commercial-scale operation of a biorefinery that produces an advanced biofuel; or
(ii) A technology not described in paragraph (i) of this definition that has been demonstrated to have technical and economic potential for commercial
(i) Materials, pre-commercial thinnings, or invasive species from National Forest System land or public lands (as defined in section 103 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1702)) that:
(A) Are byproducts of preventive treatments that are removed to reduce hazardous fuels; to reduce or contain disease or insect infestation; or to restore ecosystem health;
(B) Would not otherwise be used for higher-value products; and
(C) Are harvested in accordance with applicable law and land management plans and the requirements for old-growth maintenance, restoration, and management direction of paragraphs (2), (3), and (4) of subsection (e) of section 102 of the Healthy Forests Restoration Act of 2003 (16 U.S.C. 6512) and large-tree retention of subsection (f) of that section; or
(ii) Any organic matter that is available on a renewable or recurring basis from non-Federal land or land belonging to an Indian or Indian tribe that is held in trust by the United States or subject to a restriction against alienation imposed by the United States, including:
(A) Renewable plant material, including feed grains; other agricultural commodities; other plants and trees; and algae; and
(B) Waste material, including crop residue; other vegetative waste material (including wood waste and wood residues); animal waste and byproducts (including fats, oils, greases, and manure); and food waste and yard waste.
(1) An area that is attached to the urbanized area of a city or town with more than 50,000 inhabitants by a contiguous area of urbanized census blocks that is not more than 2 census blocks wide. Applicants from such an area should work with their Rural Development State Office to request a determination of whether their project is located in a rural area under this provision.
(2) For the purposes of this definition, cities and towns are incorporated population centers with definite boundaries, local self government, and legal powers set forth in a charter granted by the State.
(3) For the Commonwealth of Puerto Rico, the island is considered rural and eligible for Business Programs assistance, except for the San Juan Census Designated Place (CDP) and any other CDP with greater than 50,000 inhabitants. CDPs with greater than 50,000 inhabitants, other than the San Juan CDP, may be determined to be eligible if they are “not urban in character.”
(4) For the State of Hawaii, all areas within the State are considered rural and eligible for Business Programs assistance, except for the Honolulu CDP within the County of Honolulu.
(5) For the purpose of defining a rural area in the Republic of Palau, the Federated States of Micronesia, and the Republic of the Marshall Islands, the Agency shall determine what constitutes rural and rural area based on available population data.
(6) The determination that an area is “rural in character” will be made by the Under Secretary of Rural Development. The process to request a determination under this provision is outlined in paragraph (6)(ii) of this definition.
(i) The determination that an area is “rural in character” under this definition will apply to areas that are within:
(A) An urbanized area that has two points on its boundary that are at least 40 miles apart, which is not contiguous or adjacent to a city or town that has a population of greater than 150,000 inhabitants or the urbanized area of such a city or town; or
(B) An urbanized area contiguous and adjacent to a city or town of greater than 50,000 inhabitants that is within one-quarter mile of a rural area.
(ii) Units of local government may petition the Under Secretary of Rural Development for a “rural in character” designation by submitting a petition to both the appropriate Rural Development State Director and the Administrator on behalf of the Under Secretary. The petition shall document how the area meets the requirements of paragraph
(i) The advanced biofuel biorefinery's likely financial and production success is evidenced in a thorough evaluation including, but not limited to:
(A) Feedstocks;
(B) Process engineering;
(C) Siting;
(D) Technology;
(E) Energy production; and
(F) Financial and sensitivity review using a banking industry software analysis program with appropriate industry standards.
(ii) The evaluation in paragraph (i) of this definition is completed by an independent third-party expert in a feasibility study, technical report, or other analysis, which must be satisfactory to the Agency, that demonstrates the potential success of the project.
(iii) The advanced biofuel technology has successfully completed at least a 12 -month (four seasons) operating cycle at semi-work scale.
(i) Its revenue will be sufficient to recover the full cost of the project over the term of the loan and result in an anticipated annual rate of return sufficient to encourage investors or lenders to provide funding for the project;
(ii) It will be able to operate profitably without public and private sector subsidies upon completion of construction (volumetric excise tax is not included as a subsidy);
(iii) Contracts for feedstocks are adequate to address proposed off-take from the biorefinery;
(iv) It has the ability to achieve market entry, suitable infrastructure to transport the advanced biofuel to its market is available, and the advanced biofuel technology and related products are generally competitive in the market;
(v) It can be easily replicated and that replications can be sited at multiple facilities across a wide geographic area based on the proposed deployment plan; and
(vi) The advanced biofuel technology has at least a 12-month (four seasons) successful operating history at semi-work scale, which demonstrates the ability to operate at a commercial scale.
(b)
(c)
(1) An eligible lender is any Federal or State chartered bank, Farm Credit Bank, other Farm Credit System institution with direct lending authority, and Bank for Cooperatives. These entities must be subject to credit examination and supervision by either an agency of the United States or a State. Credit unions subject to credit examination and supervision by either the National Credit Union Administration or a State agency, and insurance companies regulated by a State or National insurance regulatory agency are also eligible lenders. The National Rural Utilities Cooperative Finance Corporation is also an eligible lender. Savings and loan associations, mortgage companies, and other lenders as identified in 7 CFR 4279.29(b) are not eligible.
(2) The lender must demonstrate the minimum acceptable levels of capital specified in paragraphs (c)(2)(i) through (c)(2)(iii) of this section at the time of application and at time of issuance of the loan note guarantee. This information may be identified in Call Reports and Thrift Financial Reports. If the information is not identified in the Call Reports or Thrift Financial Reports, the lender will be required to calculate
(i) Total Risk-Based Capital ratio of 10 percent or higher;
(ii) Tier 1 Risk-Based Capital ratio of 6 percent or higher; and
(iii) Tier 1 Leverage Capital ratio of 5 percent or higher.
(3) The lender must not be debarred or suspended by the Federal government.
(4) If the lender is under a cease and desist order from a Federal agency, the lender must inform the Agency. The Agency will evaluate the lender's eligibility on a case-by-case basis given the risk of loss posed by the cease and desist order.
(5) The Agency, in its sole determination, will approve applications for loan guarantees only from lenders with adequate experience and expertise, from similar projects, to make, secure, service, and collect loans approved under this subpart.
(d)
(e)
(1) Lenders must alert the Agency to any controversial environmental issues related to a proposed project or items that may require extensive environmental review.
(2) Lenders must help the borrower prepare Form RD 1940-20, “Request for Environmental Information,” (when required by 7 CFR part 1940, subpart G, or successor regulations); assist in the collection of additional data when the Agency needs such data to complete its environmental review of the proposal; and assist in the resolution of environmental problems.
(3) Lenders must ensure that the borrower has:
(i) Provided the necessary environmental information to enable the Agency to undertake its environmental review process in accordance with 7 CFR part 1940, subpart G, or successor regulations, including the provision of all required Federal, State, and local permits;
(ii) Complied with any mitigation measures required by the Agency; and
(iii) Not taken any actions or incurred any obligations with respect to the proposed project that will either limit the range of alternatives to be considered during the Agency's environmental review process or which will have an adverse effect on the environment.
(f)
(1) Any action or inaction on the part of the Agency does not relieve the lender of its responsibilities to originate and service the loan guaranteed under this subpart.
(2) The lender must compile a complete application for each guaranteed loan and maintain such application in its files for at least 3 years after the final loss has been paid.
(3) The lender must report to the Agency all conflicts of interest and appearances of conflicts of interest.
(g)
(h)
(i)
(1) The entire loan, the guaranteed and unguaranteed portions, must be secured by a first lien on all collateral necessary to run the project. The Agency may consider a subordinate lien position on inventory and accounts receivable for working capital loans provided: The Agency determines the working capital is necessary for the operation; with the subordination, the Agency remains adequately secured; and the subordination is in the best interests of the Government.
(2) The holder of a guaranteed portion shall have all rights of payment, as defined in the loan note guarantee, to the extent of the portion purchased. Even if all or a portion of the loan note guarantee has been sold to a holder, the lender will remain bound by all obligations under the loan note guarantee, Lender's Agreement, and Agency program regulations.
(3) The lender must be shown as an additional insured on insurance policies (or other risk sharing instruments) that benefit the project and must be able to assume any contracts that are material to running the project, including any feedstock or off-take agreements, as may be applicable.
(4) If a lender does not satisfactorily comply with the provision found in § 4279.256(c) and such failure leads to losses, then such losses may not be recoverable under the guarantee.
(5) When a guaranteed portion of a loan is sold to a holder, the holder shall succeed to all rights of the lender under the Loan Note Guarantee to the extent of the portion purchased. The lender will remain bound to all obligations under the Loan Note Guarantee, Lender's Agreement, and the Agency program regulations. A guarantee and right to require purchase will be directly enforceable by a holder notwithstanding any fraud or misrepresentation by the lender or any unenforceability of the guarantee by the lender, except for fraud or misrepresentation of which the holder had actual knowledge at the time it became the holder or in which the holder participates or condones. The lender will reimburse the Agency for any payments the Agency makes to a holder of lender's guaranteed loan that, under the Loan Note Guarantee, would not have been paid to the lender had the lender retained the entire interest in the guaranteed loan and not conveyed an interest to a holder.
(j)
(k)
(l)
Processing of Biorefinery Assistance Guaranteed loans under this subpart shall comply with the provisions found
For the purposes of this subpart, the ineligible purposes identified in § 4279.114(b), (c), and (p) do not apply to this subpart.
Fees will be determined according to the provisions of this section in lieu of § 4279.107.
(a)
(1) For loans receiving a 90 percent guarantee, the guarantee fee is three percent.
(2) For loans receiving less than a 90 percent guarantee, the guarantee fee is:
(i) Two percent for guarantees on loans greater than 75 percent of total project costs.
(ii) One and one-half percent for guarantees on loans of greater than 65 percent but less than or equal to 75 percent of total project costs.
(iii) One percent for guarantees on loans of 65 percent or less of total project costs.
(b)
(1) One hundred basis points (1 percent) for guarantees on loans that were originally greater than 75 percent of total project costs.
(2) Seventy five basis points (0.75 percent) for guarantees on loans that were originally greater than 65 percent but less than or equal to 75 percent of total project costs.
(3) Fifty basis points (0.50 percent) for guarantees on loans that were originally for 65 percent or less of total project costs.
Borrower eligibility will be determined according to the provisions of this section in lieu of § 4279.108.
(a)
(1)
(i) An individual;
(ii) An entity;
(iii) An Indian tribe;
(iv) A unit of State or local government;
(v) A corporation;
(vi) A farm cooperative;
(vii) A farmer cooperative organization;
(viii) An association of agricultural producers;
(ix) A National Laboratory;
(x) An institution of higher education;
(xi) A rural electric cooperative;
(xii) A public power entity; or
(xiii) A consortium of any of the above entities.
(2)
(b)
(1) Has an outstanding judgment obtained by the U.S. in a Federal Court (other than U.S. Tax Court),
(2) Is delinquent on the payment of Federal income taxes,
(3) Is delinquent on a Federal debt, or
(4) Is debarred or suspended from receiving Federal assistance.
In lieu of the requirements specified in § 4279.113, to be eligible for a guaranteed loan under this subpart, at a minimum, a borrower and project, as applicable, must meet each of the requirements specified in paragraphs (a) through (g) of this section.
(a) The project must be located in a State, as defined in § 4279.2.
(b) The project must be for either:
(1) The development and construction of commercial-scale biorefineries using eligible technology or
(2) The retrofitting of existing facilities, including, but not limited to, wood products facilities and sugar mills, with eligible technology.
(c) The project must use an eligible feedstock for the production of advanced biofuels and biobased products. Eligible feedstocks include, but are not limited to, renewable biomass, including municipal solid waste consisting of renewable biomass, biosolids, treated sewage sludge, and byproducts of the pulp and paper industry. For the purposes of this subpart, recycled paper is not an eligible feedstock.
(d) The majority of the biorefinery production must be an advanced biofuel. Unless otherwise approved by the Agency, and determined to be in the best financial interest of the government, the advanced biofuel must be sold as a biofuel. The following will be considered in determining what constitutes the majority of production:
(1) When the biorefinery produces a biobased product and, if applicable, byproduct that has an established BTU content from a recognized Federal source, majority biofuel production will be based on BTU content of the advanced biofuel, the biobased product, and, if applicable, the byproduct, or
(2) When the biorefinery produces a biobased product or, if applicable, byproduct that does not have an established BTU content, then majority biofuel production will be based on output volume, using parameters announced by the Agency in periodic Notices in the
(e) An advanced biofuel that is converted to another form of energy for sale will still be considered an advanced biofuel.
(f) The project must provide funds (
(g) The Agency will consider refinancing only under either of the two conditions specified in paragraphs (g)(1) and (g)(2) of this section.
(1) Permanent financing used to refinance interim construction financing of the proposed project only if the application for the guaranteed loan under this subpart was approved prior to closing the interim loan for the construction of the facility.
(2) Refinancing that is no more than 20 percent of the loan for which the Agency is guaranteeing and the purpose of the refinance is to enable the Agency to establish a first lien position with respect to pre-existing collateral subject to a pre-existing lien and the refinancing would be in the best financial interests of the Federal Government.
Instead of the provisions found in § 4279.119, the provisions of this section apply to loans guaranteed under this subpart.
(a) In administering this program's budgetary authority each fiscal year, the Agency will allocate up to, but no more, than 50 percent of its budgetary authority to fund applications received by the end of the first application window, including those carried over from the previous application period. Any funds not obligated to support applications submitted by the end of the first application window will be available to support applications received by the end of the second window, including those carried over from the previous application period. The Agency, therefore, will have a minimum of 50 percent of each fiscal year's budgetary authority for this program available to support applications received by the end of the second application window.
(b) The amount of a loan guaranteed for a project under this subpart will not exceed 80 percent of total eligible project costs. Total Federal participation will not exceed 80 percent of total eligible project costs. The borrower needs to provide the remaining 20 percent from other non-Federal sources to complete the project. Eligible project costs are specified in paragraph (e) of this section.
(c) The maximum principal amount of a loan guaranteed under this subpart is $250 million to one borrower; there is no minimum amount. If an eligible borrower receives other direct Federal funding (
(d) The maximum guarantee on the principal and interest due on a loan guaranteed under this subpart will be determined as specified in paragraphs (d)(1) through (d)(4) of this section.
(1) If the loan amount is equal to or less than $125 million, 80 percent for the entire loan amount unless all of the conditions specified in paragraphs (d)(1)(i) through (d)(1)(iii) of this section are met, in which case 90 percent for the entire loan amount.
(i) Equity of 40 percent, excluding qualified intellectual property;
(ii) Feedstock and off-take contracts of at least 1 year in duration; and
(iii) Collateral coverage ratio, total discounted collateral value divided by total loan request, exceeding 1.5 to 1.
(2) If the loan amount is more than $125 million and less than $150 million, 80 percent for the entire loan amount.
(3) If the loan amount is equal to or more than $150 million but less than $200 million, 70 percent on the entire loan amount.
(4) If the loan amount is $200 million up to and including $250 million, 60 percent on the entire loan amount.
(e) Eligible project costs are only those costs associated with the items listed in paragraphs (e)(1) through (e)(7) of this section, as long as the items are an integral and necessary part of the total project, as determined by the Agency.
(1) Purchase and installation of equipment (new, refurbished, or remanufactured), except agricultural tillage equipment, used equipment, and vehicles.
(2) Construction or retrofitting.
(3) Permit and license fees.
(4) Working capital.
(5) Land acquisition.
(6) Cost of financing, excluding guarantee and renewal fees.
(7) Any other item identified by the Agency in a notice published in the
(f) Loans made with the proceeds of any obligation the interest on which is excludable from income under the Internal Revenue Code are ineligible. Funds generated through the issuance of tax-exempt obligations cannot be used to purchase the guaranteed portion of any Agency guaranteed loan and an Agency guaranteed loan cannot serve as collateral for a tax-exempt issue. The Agency may guarantee a loan with respect to a project at a facility that has received, or will receive, tax-exempt financing only when the guaranteed loan funds are used to finance a project that is separate and distinct from the activities at the facility that have been or will be financed by the tax-exempt obligation, and the guaranteed loan has at least a parity security position with the tax-exempt obligation.
The provisions found in § 4279.125 apply to loans guaranteed under this subpart, except as provided in paragraphs (a) through (c) of this section. Lenders are encouraged to pass interest-rate savings realized through the secondary market on to the borrower.
(a) The rate on the unguaranteed portion of the loan shall not exceed the rate on the guaranteed portion of the loan by more than 500 basis points;
(b) Variable rate loans will not provide for negative amortization nor will they give the borrower the ability to choose its payment among various options.
(c) Both the guaranteed and unguaranteed portions of the loan must be amortized over the same term, as provided in § 4279.232(a).
Instead of the provisions found in § 4279.126, the provisions of this section apply to loans guaranteed under this subpart, except as provided in § 4279.232(e).
(a) The repayment term for a loan under this subpart will be for a maximum period of 20 years or the useful life of the project, as determined by the lender and confirmed by the Agency, whichever is less. The length of the loan term shall be the same for both the guaranteed and unguaranteed portions of the loan.
(b) Guarantees shall be provided only after consideration is given to the borrower's overall credit quality and to the terms and conditions of any applicable subsidies, tax credits, and other such incentives.
(c) All loans guaranteed under this subpart must be financially sound and feasible, with reasonable assurance of repayment.
(d) A loan's maturity will take into consideration the use of proceeds, the useful life of assets being financed, and the borrower's ability to repay the loan.
(e) Repayment of the loan shall be in accordance with § 4279.125(a) and § 4279.126(b) and (c).
Instead of the provisions found in § 4279.131, the provisions of this section apply to loans guaranteed under this subpart. For all applications for guarantee, the lender must prepare a credit evaluation. An acceptable credit evaluation must:
(a) Use credit documentation procedures and an underwriting process
(b) Include an analysis of the credit factors associated with each guarantee application, including consideration of each of the following five elements.
(1)
(2)
(3)
(4)
(i) If there is an established market for the intellectual property, the value of the intellectual property will be valued according to the lender's standard discounting practice for intellectual property for determining adequacy of collateral.
(ii) If there is no established market for the intellectual property, the value of the intellectual property will be valued not greater than 25 percent, as determined by the Agency, for determining adequacy of collateral.
(5)
(c) When determining the credit quality of the borrower, the lender must include the following in its analysis:
(1) The borrower shall demonstrate that it will be able to provide equity in the project of not less than 20 percent of eligible project costs at the time the loan is closed. For existing biorefineries, the fair market value of project equity (including the guaranteed loan being applied for) in real property and equipment and the value of qualified intellectual property based on the audited financial statements in accordance with Generally Accepted Accounting Principles may be substituted in whole or in part to meet the equity requirement. However, the appraisal completed to establish the fair market value of the real property and equipment must not be more than 1 year old. The Agency may require the lender to provide a more recent appraisal in order to reflect current market conditions. The appraisal used to establish fair market value of the real property and equipment must conform to the requirements of § 4279.244. Otherwise, equity must be in the form of cash and cannot include other direct Federal funding (
(2) The credit analysis must also include spreadsheets of the balance sheets and income statements of the borrower for the 3 previous years (for existing businesses), pro forma balance sheets at startup, and projected yearend balance sheets and income statements for a period of not less than 3 years of stabilized operation, with appropriate ratios and comparisons with industrial standards (such as Dun & Bradstreet or Robert Morris Associates) to the extent industrial standards are available.
(3) All data must be shown in total dollars and also in common size form, obtained by expressing all balance sheet items as a percentage of assets and all income and expense items as a percentage of sales.
The provisions of § 4279.137 do not apply to this subpart. Instead, the submittal of financial statements with the loan guarantee application must meet the requirements specified in § 4279.261(c).
All appraisals must be in accordance with § 4279.144 and each appraisal must be a complete, self-contained appraisal. Lenders must complete at least a Transaction Screen Questionnaire for any undeveloped sites and a Phase I Environmental Site Assessment on existing business sites in accordance with ASTM International Standards, which should be provided to the appraiser for completion of the self-contained appraisal. Specialized appraisers will be required to complete appraisals under this section. The Agency may approve a waiver of this requirement only if a specialized appraiser does not exist in a specific industry or hiring one will cause an undue financial burden to the borrower.
The provisions of § 4279.150 do not apply to this subpart. Instead, feasibility studies must meet the requirements specified in § 4279.261(f).
The provisions of § 4279.155 do not apply to this subpart.
The lender must comply with § 4279.156(a) through (c), except as otherwise provided in paragraphs (a) through (f) of this section.
(a)
(b)
(c)
(d)
(1) Certification by the project engineer to the lender that the work referred to in the draw has been successfully completed;
(2) Certification from the lender that all debts have been paid and all mechanics' liens have been waived; and
(3) Certification from the lender that the borrower is complying with the Davis-Bacon Act.
(e)
(f)
(a)
(1) Land use zoning;
(2) Health, safety, and sanitation standards as well as design and installation standards; and
(3) Protection of the environment and consumer affairs.
(b)
(c)
(d)
(e)
Unless otherwise noted, the provisions of § 4279.161 do not apply to this subpart. Instead, the application provisions of this section and § 4279.261 apply to the preparation of Biorefinery Assistance Guaranteed loan applications.
(a)
(b)
(c)
(d)
Approved lenders must submit an Agency-approved application form for each loan guarantee sought under this subpart. Loan guarantee applications from approved lenders must contain the information specified in paragraphs (a) through (n) of this section, organized pursuant to a table of contents in a chapter format, and in paragraph (o) of this section as applicable.
(a)
(1)
(2)
(3)
(4)
(b)
(1) A summary of the technology to be used in the project;
(2) The viability of such technology for the particular project application;
(3) The development type (e.g., installation, construction, retrofit);
(4) The credit reports of the borrower, its principals, and any parent, affiliate, or subsidiary as follows:
(i) A personal credit report from an Agency-approved credit reporting company for individuals who are key employees of the borrower, as determined by the Agency, and for individuals owning 20 percent or more interest in the borrower or any owner with more than 10 percent ownership interest in the borrower if there is no owner with more than 20 percent ownership interest in the borrower, except for when the borrower is a corporation listed on a major stock exchange unless otherwise determined by the Agency; and
(ii) Commercial credit reports on the borrower and any parent, affiliate, and subsidiary firms;
(5) The credit analysis specified in § 4279.232(b);
(6) For loans of $125 million or more, an evaluation and credit rating of the total project's indebtedness, without consideration for a government guarantee, from a nationally-recognized rating agency; and
(7) Whether the loan note guarantee is requested prior to construction or after completion of construction of the project.
(c)
(1) For businesses that have been in existence for one or more years,
(i) The most recent audited financial statements of the borrower if the guaranteed loan is $3 million or more, unless alternative financial statements are authorized by the Agency; or
(ii) The most recent audited or Agency-acceptable financial statements of the borrower if the guaranteed loan is less than $3 million.
(2) For businesses that have been in existence for less than one year, the most recent Agency-authorized financial statements of the borrower regardless of the amount of the guaranteed loan request.
(3) For all businesses, a current (not more than 90 days old) balance sheet; a
(4) Depending on the complexity of the project and the financial condition of the borrower, the Agency may request additional financial statements and additional related information.
(d)
(e)
(f)
(g)
(1) The borrower's experience;
(2) The borrower's succession planning, addressing both ownership and management;
(3) The names and a description of the relationship of the borrower's parent, affiliates, and subsidiaries;
(4) The borrower's business strategy;
(5) Possible vendors and models of major system components;
(6) The availability of the resources (
(7) Site location and its relation to product distribution (
(8) The market for the product and its competition, including any and all competitive threats and advantages;
(9) Projected balance sheets, income and expense statements, and cash flow statements for a period of not less than 3 years of stabilized operation; and
(10) A description of the proposed use of funds.
(h)
(1)
(i) Discuss the proposed project delivery method. Such methods include a design-bid-build method, where a separate engineering firm may design the project and prepare a request for bids and the successful bidder constructs the project at the borrower's risk, and a design-build method, often referred to as “turnkey,” where the borrower establishes the specifications for the project and secures the services of a developer who will design and build the project at the developer's risk;
(ii) Discuss the manufacturers of major components of advanced biofuels technology equipment being considered in terms of the length of time in business and the number of units installed at the capacity and scale being considered;
(iii) Discuss the project team members' qualifications for engineering, designing, and installing advanced biofuels refineries, including any relevant certifications by recognized organizations or bodies. Provide a list of the same or similar projects designed, installed, or supplied and currently operating, with references if available; and
(iv) Describe the advanced biofuels refinery operator's qualifications and experience for servicing, operating, and maintaining such equipment or projects. Provide a list of the same or similar projects designed, installed, or supplied and currently operating, with references if available.
(2)
(i) Advanced biofuels refineries must be installed in accordance with applicable local, State, and national codes and applicable local, State, and Federal regulations. Identify zoning and code requirements and necessary permits and the schedule for meeting those requirements and securing those permits.
(ii) Identify licenses where required and the schedule for obtaining those licenses.
(iii) Identify land use agreements required for the project, the schedule for securing those agreements, and the term of those agreements.
(iv) Identify any permits or agreements required for solid, liquid, and gaseous emissions or effluents and the schedule for securing those permits and agreements.
(v) Identify available component warranties for the specific project location and size.
(vi) Identify all environmental issues, including environmental compliance issues, associated with the project.
(3)
(4)
(i) The application must include a concise but complete description of the project, including location of the project; resource characteristics, including the kind and amount of feedstocks; biorefinery specifications; kind, amount, and quality of the output; and monitoring equipment. Address performance on a monthly and annual basis. Describe the uses of or the market for the advanced biofuels produced by the biorefinery. Discuss the impact of reduced or interrupted feedstock availability on the biorefinery's operations.
(ii) The application must include:
(A) A description of the project site that addresses issues such as site access, foundations, and backup equipment when applicable;
(B) A completed Form RD 1940-20 and an environmental assessment prepared in accordance with Exhibit H of 7 CFR part 1940, subpart G; and
(C) Identification of any unique construction and installation issues.
(iii) Sites must be controlled by the eligible borrower for at least the financing term of the loan note guarantee.
(5)
(6)
(7)
(8)
(i) Information regarding available biorefinery and component warranties and availability of spare parts;
(ii) A description of the routine operations and maintenance requirements of the proposed biorefinery, including maintenance schedules for the mechanical, piping,
(iii) A discussion of the costs and labor associated with operating and maintaining the biorefinery and plans for in-sourcing or outsourcing. A description of the opportunities for technology transfer for long-term project operations and maintenance by a local entity or owner/operator; and
(iv) Provision and discussion of the risk management plan for handling large, unanticipated failures of major components.
(9)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
Instead of evaluating applications using the provisions of § 4279.165, the Agency will evaluate and award applications according to the provisions specified in paragraphs (a) through (h) of this section.
(a)
(1) If the borrower, lender, or the project is determined to be ineligible for any reason, the Agency will inform the lender, in writing, of the reasons. No further evaluation of the application will occur.
(2) If the Agency determines it is unable to guarantee the loan, the lender will be informed in writing. Such notification will include the reasons for denial of the guarantee.
(b)
(c)
(1) A debt coverage ratio of 1.0 or higher.
(2) A debt-to-tangible net worth ratio of 4:1 or lower for startup businesses and of 9:1 or lower for existing businesses.
(3) A discounted loan-to-value ratio of no more than 1.0.
(d)
(1) Whether the borrower has established a market for the advanced biofuel and the byproducts produced and whether the advanced biofuel meets an applicable renewable fuel standard. A maximum of 10 points can be awarded. Points to be awarded will be determined as follows:
(i) If the business has less than or equal to a 50 percent commitment for each of the following: feedstocks, marketing agreements for the advanced biofuel, and the byproducts produced or if the project does not produce an advanced biofuel that meets an applicable renewable fuel standard, 0 points will be awarded.
(ii) If the business has a greater than 50 percent commitment for any one or two of the following: feedstocks, marketing agreements for the advanced biofuel, and the byproducts produced and if the project produces an advanced biofuel that meets an applicable renewable fuel standard, 5 points will be awarded.
(iii) If the business has a greater than 50 percent commitment for each of the following: Feedstocks, marketing agreements for the advanced biofuel, and the byproducts produced and if the project produces an advanced biofuel that meets an applicable renewable fuel standard, 10 points will be awarded.
(2) Whether the area in which the borrower proposes to place the biorefinery, defined as the area that will supply the feedstock to the proposed biorefinery, has any other similar advanced biofuel facilities. A maximum of 5 points can be awarded. Points to be awarded will be determined as follows:
(i) If the area that will supply the feedstock to the proposed biorefinery does not have any other similar advanced biofuel biorefineries, 5 points will be awarded.
(ii) If there are other similar advanced biofuel biorefineries located within the area that will supply the feedstock to the proposed biorefinery, 0 points will be awarded.
(3) Whether the borrower is proposing to use a feedstock not previously used in the production of advanced biofuels. A maximum of 15 points can be awarded. Points to be awarded will be determined as follows:
(i) If the borrower proposes to use a feedstock previously used in the production of advanced biofuels in a commercial facility, 0 points will be awarded.
(ii) If the borrower proposes to use a feedstock not previously used in production of advanced biofuels in a commercial facility, 15 points will be awarded.
(4) Whether the borrower is proposing to work with producer associations or cooperatives. A maximum of 5 points can be awarded. Points to be awarded will be determined as follows:
(i) Five (5) points will be awarded if any one of the three conditions specified in paragraphs (d)(4)(i)(A) through (d)(4)(i)(C) of this section is met.
(A) At least 60 percent of the dollar value of feedstock to be used by the proposed biorefinery will be supplied by producer associations and cooperatives;
(B) At least 60 percent of the dollar value of the advanced biofuel to be produced by the proposed biorefinery will be sold to producer associations and cooperatives; or
(C) At least 60 percent of the dollar value of the biobased products to be produced by the proposed biorefinery will be sold to producer associations and cooperatives.
(ii) Three (3) points will be awarded if any one of the three conditions specified in paragraphs (d)(4)(ii)(A) through (d)(4)(ii)(C) of this section is met.
(A) At least 30 percent of the dollar value of feedstock to be used by the proposed biorefinery will be supplied by producer associations and cooperatives;
(B) At least 30 percent of the dollar value of the advanced biofuel, or an advanced biofuel converted to electricity, to be produced by the proposed biorefinery will be sold to producer associations and cooperatives; or
(C) At least 30 percent of the dollar value of the biobased products to be produced by the proposed biorefinery will be sold to producer associations and cooperatives.
For example, consider a proposed biorefinery that will purchase $1,000,000 of feedstock and produce $5,000,000 worth of biofuel and $2,000,000 worth of biobased products. In order to receive the 5 points under this criterion, at least $600,000 worth of feedstock purchases must be from producer associations or cooperatives, at least $3,000,000 worth of biofuel must be sold to producer associations or cooperatives, or at least $1,200,000 worth of biobased products must be sold to producer associations or cooperatives.
(5) The level of financial participation by the borrower, including support from non-Federal government sources and private sources. Other direct Federal funding (
(i) If the borrower's equity plus other resources results in a debt-to-tangible net worth ratio equal to or less than 3 to 1, but greater than 2.5 to 1, 8 points will be awarded.
(ii) If the borrower's equity plus other resources results in a debt-to-tangible net worth ratio equal to or less than 2.5 to 1, 15 points will be awarded.
(iii) If a project uses other Federal direct funding, 10 points will be deducted.
(6) Whether the borrower has established that the adoption of the process proposed in the application will have a positive effect on three impact areas: resource conservation (
(i) If process adoption will have a positive impact on any one of the three impact areas (resource conservation, public health, or the environment), 3 points will be awarded.
(ii) If process adoption will have a positive impact on two of the three impact areas, 6 points will be awarded.
(iii) If process adoption will have a positive impact on all three impact areas, 10 points will be awarded.
(iv) If the project proposes to use a feedstock that can be used for human or animal consumption as a feedstock, 5 points will be deducted from the score.
(7) Whether the borrower can establish that, if adopted, the biofuels production technology proposed in the application will not have any economically significant negative impacts on existing manufacturing plants or other facilities that use similar feedstocks. A maximum of 10 points can be awarded. Points to be awarded will be determined as follows:
(i) If the borrower has not established, through an independent third party feasibility study, that the biofuels production technology proposed in the application, if adopted, will not have any economically significant negative impacts on existing manufacturing plants or other facilities that use similar feedstocks, 0 points will be awarded.
(ii) If the borrower has established, through an independent third party feasibility study, that the biofuels production technology proposed in the application, if adopted, will not have any economically significant negative impacts on existing manufacturing plants or other facilities that use similar feedstocks, 10 points will be awarded.
(iii) If the feedstock is wood pellets, no points will be awarded under this criterion.
(8) The potential for rural economic development. If the project is located in a rural area and the business creates jobs with an average wage that exceeds the County median household wages where the biorefinery will be located, 10 points will be awarded.
(9) The level of local ownership of the biorefinery proposed in the application. A maximum of 5 points can be awarded. Points to be awarded will be determined as follows:
(i) If local owners have an ownership interest in the biorefinery of more than 20 percent but less than or equal to 50 percent, 3 points will be awarded.
(ii) If local owners have an ownership interest in the biorefinery of more than 50 percent, 5 points will be awarded.
(10) Whether the project can be replicated. A maximum of 10 points can be awarded. Points to be awarded will be determined as follows:
(i) If the project can be commercially replicated regionally (
(ii) If the project can be commercially replicated nationally, 10 points will be awarded.
(11) If the project uses a particular technology, system, or process that is not currently operating in the advanced biofuel market as of October 1 of the fiscal year for which the funding is available, 5 points will be awarded.
(12) The Administrator can award up to a maximum of 10 bonus points to applications that promote partnerships and other activities that assist in the development of new and emerging technologies for the development of advanced biofuels so as to increase the energy independence of the United States; promote resource conservation, public health, and the environment; diversify markets for agricultural and forestry products and agriculture waste material; and create jobs and enhance the economic development of the rural economy. These partnerships and other activities will be identified in a
(e)
(1) All applications received on or before November 1 and May 1 will be ranked by the Agency and will be
(2) When an application scored in first set of applications is carried forward into the second set of applications, it will be competed against all of the applications in the second set using its score from the first set of applications.
(f)
(1)
(2)
(i) If there is insufficient budgetary authority during a particular funding period to select a higher scoring application, the Agency may elect to select the next highest scoring application for further processing. Before this occurs, the Agency will provide the borrower of the higher scoring application the opportunity to reduce the amount of its request to the amount of budgetary authority available. If the borrower agrees to lower its request, it must certify that the purposes of the project can be met, and the Agency must determine the project is financially feasible at the lower amount.
(ii) If the amount of funding required is greater than 25 percent of the program's outstanding budgetary authority, the Agency may elect to select the next highest scoring application for further processing, provided the higher scoring borrower is notified of this action and given an opportunity to revise their application and resubmit it for an amount less than or equal to 25 percent of the program's outstanding budgetary authority.
(3)
(g)
(h)
The provisions of § 4279.175 do not apply to this subpart.
All changes in borrowers must be in accordance with § 4279.180, but the eligibility requirements of this program apply.
The loan note guarantee will not be issued until the lender certifies to the conditions identified in § 4279.181(a) through (o) of subpart B of this part and paragraphs (a) through (h) of this section. If the lender is unable to provide any of the certifications required under this section, the lender must provide an explanation satisfactory to the Agency as to why the lender is unable to provide the certification. The lender can request the guarantee prior to construction, but must still certify to all conditions in this section.
(a) For loans exceeding $150,000, the lender has certified its compliance with the Anti-Lobby Act (18 U.S.C. 1913). Also, if any funds have been, or will be, paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this commitment providing for the United States to guarantee a loan, the lender shall completely disclose such lobbying activities in accordance with 31 U.S.C. 1352.
(b) Where applicable, the lender must certify that the borrower has obtained:
(1) A legal opinion relative to the title to rights-of-way and easements. Lenders are responsible for ensuring that borrowers have obtained valid, continuous, and adequate rights-of-way and easements needed for the construction, operation and maintenance of a facility.
(2) A title opinion or title insurance showing ownership of the land and all mortgages or other lien defects, restrictions, or encumbrances, if any. It is the responsibility of the lender to ensure that the borrower has obtained and recorded such releases, consents, or subordinations to such property rights from holders of outstanding liens or other instruments as may be necessary for the construction, operation and maintenance of the facility and to provide the required security. For example, when a site is for major structures for utility-type facilities (such as a gas distribution system) and the lender and borrower are able to obtain only a right-of-way or easement on such site rather than a fee simple title, such a title opinion must be provided.
(c) The minimum financial criteria, including those financial criteria contained in the Conditional Commitment, have been maintained through the issuance of the loan note guarantee. Failure to maintain these financial criteria shall result in an ineligible application.
(d) Each borrower shall certify to the lender that all laborers and mechanics employed by contractors or subcontractors in the performance of construction work financed in whole or in part with guaranteed loan funds under this subpart shall be paid wages at rates not less than those prevailing on similar construction in the locality as determined by the Secretary of Labor in accordance with sections 3141 through 3144, 3146, and 3147 of title 40 U.S.C.
(e) The lender certifies that it has reviewed all contract documents and verified compliance with Sections 3141 through 3144, 3146, and 3147 of title 40 U.S.C., and title 29 of the Code of Federal Regulations. The lender will certify that the same process will be completed for all future contracts and any changes to existing contracts.
(f) The lender certifies that the proposed facility complies with all Federal, State, and local laws and regulatory rules that are in existence and that affect the project, the borrower, or lender activities.
(g) The lender will notify the Agency in writing whenever there has been a change in the classification of a loan within 15 calendar days of such change.
(h) The lender certifies that the borrower has provided the equity in the project identified in the Conditional Commitment.
Once the project has been constructed, the lender must:
(a) Provide the Agency annual reports from the borrower commencing the first full calendar year following the year in which project construction was completed and continuing for the life of the guaranteed loan. The borrower's reports will include, but not be limited to, the information specified in the following paragraphs, as applicable.
(1) The actual amount of advanced biofuels, biobased products, and, if applicable, byproducts produced in order to assess whether project goals related to majority production are being met;
(2) If applicable, documentation that identified health and/or sanitation problems have been solved;
(3) A summary of the cost of operating and maintaining the facility;
(4) A description of any maintenance or operational problems associated with the facility;
(5) Certification that the project is and has been in compliance with all applicable State and Federal environmental laws and regulations;
(6) The number of jobs created;
(7) A description of the status of the project's feedstock including, but not limited to, the feedstock being used, outstanding feedstock contracts, feedstock changes and interruptions, and quality of the feedstock;
(8) The results of the annual inspections conducted under paragraph (b) of this section; and
(b) For the life of the guaranteed loan, conduct annual inspections.
5 U.S.C. 301; 7 U.S.C. 1989.
(a) This subpart supplements 7 CFR part 4279, subparts A and C, by providing additional requirements and instructions for servicing and liquidating all Biorefinery Assistance Guaranteed Loans.
(b) The lender will be responsible for servicing the entire loan and will remain mortgagee and secured party of record notwithstanding the fact that another party may hold a portion of the loan. The entire loan will be secured by the same security with equal lien priority for the guaranteed and unguaranteed portions of the loan. The unguaranteed portion of a loan will neither be paid first nor given any preference or priority over the guaranteed portion of the loan.
(c) Copies of all forms, regulations, and Instructions referenced in this subpart are available in any Agency office. Whenever a form is designated in this subpart, that designation includes predecessor and successor forms, if applicable, as specified by the field or National Office.
The definitions and abbreviations contained in § 4279.2 of subpart A and in § 4279.202 of subpart C of part 4279 of this chapter apply to this subpart.
The exception authority provisions of this paragraph apply to this subpart instead of those in § 4279.15 of subpart A of part 4279 of this chapter. The Administrator may, with the concurrence of the Secretary of Agriculture, make an exception, on a case-by-case basis, to any requirement or provision of this subpart that is not inconsistent with any authorizing statute or applicable law, if the Administrator determines that application of the requirement or provision would adversely affect the Federal government's interest.
Section 4279.16 of subpart A of part 4279 of this chapter applies to this subpart.
Except as specified in paragraphs (a) through (m) of this section, all loans guaranteed under this subpart shall comply with the provisions found in §§ 4287.101 through 4287.180 of this chapter. If the Agency determines that the lender is not in compliance with its servicing responsibilities, the Agency reserves the right to take any action the Agency determines necessary to protect the Agency's interests with respect to the loan. If the Agency exercises this right, the lender must cooperate with the Agency. Any cost to the Agency associated with such action will be assessed against the lender.
(a)
(b)
(c)
(1) The financial reports required under § 4287.107(d) may be specified in either the loan agreement or the Conditional Commitment;
(2) The lender must submit to the Agency quarterly financial statements within 45 days of the end of each quarter; and
(3) The annual financial statements required under § 4287.107(d) must be audited financial statements and must be submitted within 180 days.
(d)
(e)
(f)
(1) Lenders may, over the life of the guaranteed loan, release collateral with a cumulative value of up to 20 percent of the original loan amount without Agency concurrence (subject to the provisions of paragraph (f)(3) of this section) if the proceeds generated are used to pay down secured debt in order of lien priority or to buy replacement collateral.
(2) Release of collateral with a cumulative value in excess of 20 percent of the original loan or when the proceeds will not be used to pay down secured debt in order of lien priority or to buy replacement collateral, must be requested, in writing, by the lender and concurred by the Agency, in writing, in advance of the release. A written evaluation will be completed by the lender to justify the release.
(3) Lenders may not release collateral with a value of more than 10 percent of the original loan amount at any one time and within any one calendar year without Agency concurrence.
(4) Any release of collateral must not adversely affect the project's operation or financial condition.
(g)
(h)
(1) In complying with § 4287.134(a), eligible applicants shall be determined in accordance with subpart C of part 4279 of this chapter instead of subpart B of part 4279.
(2) Any new loan terms under § 4287.134(b) must be within the terms authorized by § 4279.232 of subpart C of part 4279 of this chapter instead of § 4279.126 of subpart B of part 4279.
(3) Additional loans under § 4287.134(e) will be considered as a new loan application under subpart C of part 4279 of this chapter instead of subpart B of part 4279.
(4) The Agency may charge the lender a nonrefundable transfer fee at the time of a transfer application. The Agency will set the amount of the transfer fee in an annual notice of funds availability published in the
(5) Assumption shall be deemed to occur in the event of a change in the control of the borrower. For purposes of the loan, change of control means the merger of the borrower, sale of all or substantially all of the assets of the borrower, or the sale of more than 25 percent of the stock or other equity interest of either the borrower or its corporate parent.
(6) The Agency will not approve any change in terms that results in an increase in the cost of the loan guarantee, unless the Agency can secure any additional budget authority that would be required and the change otherwise conforms with applicable regulations.
(i)
(1) Is an eligible lender in accordance with § 4279.202(b);
(2) Is able to service the loan in accordance with the original loan documents; and
(3) Acquires title to the unguaranteed portion of the loan held by the original lender and assumes all original loan requirements, including liabilities and servicing responsibilities.
(j)
(1) Instead of complying with § 4287.145(b)(2), in the event a deferment, rescheduling, reamortization, or moratorium is accomplished, it will be limited to the remaining life of the collateral or remaining limits as contained in § 4279.232(a) of part 4279 of this chapter; and
(2) If a loan goes into default, the lender must provide the notification required under § 4287.145(a) to the Agency within 15 calendar days of when a borrower is 30 days past due on a payment or is otherwise in default of the Loan Agreement.
(k)
(1) Instead of the $5,000 specified in § 4287.156(c), the Agency's written authorization is required when cumulative protective advances exceed $100,000, unless otherwise specified by the Agency at a lesser amount.
(2) The lender must obtain written Agency approval for any protective advance that will singularly or cumulatively amount to more than $100,000 or 10 percent of the guaranteed loan, whichever is less.
(l)
(m)
Any loan guarantee application that has been submitted to the Agency under this program prior to March 16, 2011 may submit to the Agency a written request for an irrevocable election to
Forest Service, USDA.
Notice of proposed rulemaking; request for comment.
The U.S. Department of Agriculture is proposing a new planning rule to guide land and resource management planning for all units of the National Forest System (NFS) under the National Forest Management Act of 1976. The proposed rule sets forth process and content requirements to guide the development, amendment, and revision of land management plans to maintain, protect, and restore NFS lands while providing for sustainable multiple uses, including ecosystem services, so that NFS lands continuously provide ecosystem functions and contribute to social and economic sustainability. Planning under the proposed rule would be collaborative and science-based with the responsible official required to take the best available scientific information into account and provide opportunities for public participation throughout the planning process.
The proposed framework consists of a three-part learning and planning cycle: Assessment, development/revision/amendment, and monitoring. The phases of the framework are complementary and are intended to create a feedback loop that allows the Forest Service to adapt management to changing conditions and to improve plans based on new information and monitoring. This framework is intended to move the Agency toward a more responsive planning process that allows the Agency to understand the landscape-scale context for management, adapt management to changing conditions, improve management based on new information and monitoring, and support an integrated and holistic approach to management that recognizes the interdependence of social, ecological, and economic systems.
The Agency is requesting public comment on the proposed rule and on the alternatives that are described and evaluated in the accompanying draft environmental impact statement (DEIS). Readers are invited to comment on each section of the proposed rule and on how provisions in the DEIS alternatives compare with the proposed rule. The Agency will carefully consider all public comments in preparing the final rule.
Comments must be received in writing by May 16, 2011. The Agency will consider and place comments received after this date in the record only if practicable. Public meetings to discuss the proposed rule and draft environmental impact statement will be held throughout the country during the public comment period. A schedule of meeting dates and further information is available on the planning rule Web site at
Submit comments through the public participation portal at
Ecosystem Management Coordination staff's Assistant Director for Planning Ric Rine at 202-205-1022 or Planning Specialist Regis Terney at 202-205-1552.
The following information is available online at
A new Agency planning rule is proposed to guide land managers in developing, amending, and revising land management plans for all units of the National Forest System (NFS), consisting of 155 national forests, 20 grasslands and 1 prairie. The new planning rule must be responsive to the challenges of climate change; the need for forest restoration and conservation, watershed protection, and wildlife conservation; and the need for the sustainable provision of benefits, services, resources, and uses of NFS lands, including ecosystem services and sustainable recreation. It must provide a process for planning that is adaptive, science-based, and collaborative with ample opportunities for active and effective public participation. The new planning rule must be clear, efficient, effective, and within the Agency's capability to implement on all NFS units. It must meet requirements under the National Forest Management Act (NFMA), as well as allow the Agency to meet its obligations under the Multiple-Use Sustained-Yield Act (MUSYA), the Endangered Species Act, and the Wilderness Act, as well as other legal requirements. With stability in planning regulations, national land management planning can regain momentum, and units would be able to complete timely revisions that guide sustainable management of NFS lands.
The Forest Service mission is to sustain the health, diversity, and productivity of the Nation's forests and grasslands to meet the needs of present and future generations. The NFS consists of 193 million acres of national forests and grasslands. Land management plans provide a framework for integrated resource management on NFS units, and guide project and activity decisionmaking on the unit. The Forest Service planning rule serves as the primary tool to ensure that land management plans continuously provide desired ecosystem functions, contribute to social and economic sustainability, are rooted in the best available scientific information, and are developed with public input and participation.
The objective of this proposed rule is to guide the collaborative and science-based development, amendment, and revision of land management plans that
The rule proposes a framework for adaptive management and planning and reflects key themes from the public, as well as experience gained through the Agency's 30-year history with land management planning. The framework is intended to move the Agency toward a more adaptive system with more frequent amendments that can keep plans current between revisions. Plans will be revised at least every 15 years. However, under the proposed rule, the Agency expects plan amendments to be done more frequently than they are now. For example, as budgets and conditions on-the-ground change, the plan objectives may be amended every 3 to 5 years. Alternatively, if new information is learned about a threatened and endangered species, plan standards and guidelines may be updated more often. Some plans may even be amended annually to reflect up-to-date information.
The proposed framework consists of a three-part learning and planning cycle: (1) Assessment, (2) development/revision/amendment, and (3) monitoring. The phases of the framework are complementary and are intended to create a feedback loop that allows the Forest Service to adapt management to changing conditions and to improve plans based on new information and monitoring.
Throughout implementation of the cycle, the Forest Service would:
(1)
(2)
(3)
The proposed rule would strengthen the role of public involvement in the planning process and provide numerous opportunities for meaningful public participation and dialogue. The proposed rule would require that the best available scientific information be taken into account and documented. The planning process would take into account other forms of knowledge, such as local information, national perspectives, and native knowledge. Ideas, resources, and knowledge should be shared with all interests, individuals, and groups throughout the planning process.
The planning process also builds an understanding of the landscape-scale context for unit-level management. Assessments, in particular, are designed to create an understanding of conditions, trends, and stressors on-and-off NFS lands in order to guide the development of plans to manage resources on the unit. The proposed rule has requirements in each phase for working with the public, partners, landowners, other government agencies, and Tribes and would require the responsible official to identify each unit's unique roles and contributions to the local area, region, and Nation.
The proposed rule would include requirements for plan components. In the face of changing environmental conditions such as climate change, plans would include plan components to maintain or restore ecosystem and watershed health and resilience; protect key ecosystem elements, including water resources on the unit; and provide for plant and animal diversity. In doing so, responsible officials would take into account the various stressors or impacts that could affect the presence of ecological resources and their functions on the unit.
Plans would also include plan components to contribute to social and economic sustainability. The proposed rule emphasizes integrated resource management so that all the relevant interdependent elements of sustainability are considered as a whole, instead of as separate resources or uses. Planning would consider the full suite of multiple uses, including ecosystem services, energy, minerals, outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness, to the extent relevant to the plan area. Plan components would be required to provide for multiple uses, including sustainable recreation and ecosystem services, and protect cultural and historic resources and specially designated areas (such as wilderness areas and wild and scenic rivers). Plans would also guide the management of timber harvest, as required by the NFMA.
The proposed rule would create a two-tiered strategy for monitoring at the unit level and at a broader scale. Monitoring would be a central part of both content of plans and the planning process, allowing responsible officials to test assumptions, track changing conditions, measure management implementation and effectiveness in achieving desired outcomes, and feed new information back into the planning cycle so that plans and management can be changed as needed.
Finally, the proposed rule would create a pre-decisional administrative review process to provide individuals and groups with an opportunity to resolve issues before the approval of a plan, plan amendment, or plan revision.
The NFMA at 16 U.S.C. 1604 requires the Agency to have a planning rule developed “under the principles of the Multiple-Use Sustained-Yield Act of 1960, that set[s] out the process for the development and revision of the land management plans, and the guidelines and standards” (16 U.S.C. 1604 (g)). This requirement is fulfilled through a planning rule, set out at Title 36, Code of Federal Regulations, Part 219 (36 CFR Part 219), which sets requirements for land management planning and content of plans.
In 1979, the Department issued the first regulations to comply with this statutory requirement. The 1979 regulations were superseded by the 1982 planning rule, which has formed the basis for all existing Forest Service land management plans.
In 1989, the Agency initiated a comprehensive Critique of Land Management Planning, which identified a number of adjustments that were needed to the 1982 planning rule. The Critique found that the 1982 planning rule process was complex, had significant costs, was lengthy, and was cumbersome for the public to provide input. The recommendations in the Critique and the Agency's experiences with planning led to the Agency issuing an advance notice of proposed rulemaking for new regulations in 1991 and two proposed rules in 1995 and 1999.
After working with a committee of scientists, the Department issued a final rule in 2000 to revise the 1982 regulations. The 2000 revision of the planning rule described a new framework for NFS planning; made sustainability the foundation for NFS planning and management; required the
Though committees of scientists were created for the 1979 rule and 2000 rule, a formal committee of scientists was not formed for this planning rule for several reasons. The Agency believes a collaborative approach, involving as many interests as possible, including the scientific community, is best for developing the planning rule. Science is one source of understanding and knowledge that informs planning and decision-making. Much of planning also involves consideration of public values in land management. This proposed rule is very much a science-based rule and establishes a strong requirement for consideration and use of best available scientific information in planning. The proposed rule is based on some of the major recommendations from the 1999 Committee of Scientists report: Sustainability, public participation and collaboration, adaptive management, monitoring and evaluation, the role of science, and the objection process; all concepts that were recommendations of that report. In addition, the Agency has reached out to the science community in developing this proposed rule. An open, public meeting of invited scientists occurred in Washington, DC, March 29-30, 2010, to create a dialogue about the latest science relevant to the planning rule. Additionally, scientists have been involved in the development and review of the proposed rule from the beginning and will continue to be involved throughout the rule making process.
Because it was the last promulgated rule to take effect and not to have been set aside by a court, the planning rule issued in 2000 legally governs the development, amendment, or revision of plans until a new planning rule is issued. On December 18, 2009, the Department reinstated the 2000 rule in the Code of Federal Regulations as an interim measure and made technical amendments to update transition provisions to be in effect until a new planning rule is issued (74 FR 67062). While the 2000 planning rule replaced the 1982 rule in the Code of Federal Regulations, the transition section of the 2000 rule allows units to use the 1982 planning rule procedures for plan revisions and amendments until a new planning rule is issued. The Agency's expectation, based on experience, is that those NFS units choosing to amend or revise plans during the development of this new rule will continue to use the 1982 rule procedures until the new planning rule is issued.
The 1982 planning rule procedures have guided the development, amendment, and revision of all existing Forest Service land management plans. However, since 1982 much has changed in our understanding of how to create and implement effective land management plans. The body of science that informs land management planning in areas such as conservation biology and ecology has advanced considerably since 1982, as has our understanding of the values and benefits of NFS lands, and the challenges and stressors that may impact resources on the unit (including climate change).
Because planning under the 1982 rule is often time consuming and cumbersome, it has been a challenge for units to keep plans current. Instead of updating plans as conditions on the ground change, units often wait and make changes all at once during the required revision process every 15 years. This can result in a drawn-out, difficult, and costly revision process. Plans in the interim lose much of their utility because they no longer reflect the reality on the ground. The focus of land management activity has also changed. Much of the 1982 rule focused on creating plans that would mitigate negative environmental impacts from resource extraction activities. The protective measures in the 1982 rule were important, but now the Agency needs plans that do more than mitigate harm. The Agency needs a planning process that helps units identify their unique roles in the broader landscape and create land management plans to guide proactive contributions of the unit and of management to ecological, social, and economic sustainability.
The instability created by the history of the planning rule has had a significant negative impact on the Agency's ability to manage the NFS and on its relationship with the public. At the same time, the vastly different context for management and improved understanding of science and sustainability that has evolved over the past three decades creates an urgent need for a planning framework that allows the Agency to respond to new challenges and management objectives for NFS lands. The NFMA requires that the Agency revise land management plans “at least every 15 years.” The NFS has 127 land management plans. Currently, 68 plans are past due for plan revision. Most plans were developed between 1983 and 1993 and should have been revised between 1998 and 2008. The Agency must establish a stable planning rule that is consistent with the current science and creates a planning process that can incorporate new knowledge as science continues to evolve, allowing the Agency to protect, reconnect, and restore national forests and grasslands for the benefit of human communities and natural resources.
The Agency strongly believes that involving the public through a participatory, open, and meaningful process is the best way to develop this planning rule. This belief has, and continues to be, reflected in the unprecedented participatory process created to develop this proposed rule. The Agency is working to make the process accessible through the use of updated methods of involvement such as new media and has engaged in efforts to involve diverse groups and interests.
The development of this proposed rule has been informed by the 26,000 comments made on the Notice of Intent (NOI); a Science Forum with panel discussions from 21 scientists; regional and national roundtables held in over 35 locations and attended by over 3,000 people; national and regional tribal roundtables; feedback from Forest Service employees; and over 300 comments on the planning rule blog. Summary reports of this input are available at:
The participatory process to develop this proposed rule began with a new approach to the NOI. While an NOI typically involves sending out a detailed proposed action for comment, the Agency wanted to involve the public in crafting the proposed rule from its very beginning. The December 2009 NOI for the proposed planning rule therefore asked for public feedback on a set of eight principles that could be used to guide future land management planning. The notice resulted in a broad discussion of what should be in a proposed rule and led to a robust
While input from the public, Tribes, and agency employees covered a broad range of opinion, there were areas of consistent shared support. Broad support exists for a simple but effective planning process; a planning rule designed to persist through changing times; up-front collaboration in developing proposals for plan revisions; creating plans that focus on NFS units, but also reflect consideration of the landscape beyond unit boundaries; and a strong monitoring plan component that improves accountability and encourages a mutual learning process with cooperators and partners. Additional themes that arose during public participation included the importance of public involvement and working with Tribes, the importance of working with State and local governments and other Federal agencies in land management planning; the importance of providing for sustainable recreation; the importance of creating a rule that meets the multiple use mandate of MUSYA; and the need for an efficient plan amendment and revision process that can keep pace with changing conditions.
There were also broad areas of disagreement that emerged from the collaborative process. One point of tension was how to balance the need for national consistency with the need for local flexibility. Some people want a rule that is streamlined and only includes direction on meeting the minimum requirements of the NFMA, so that local units have more flexibility in how their plan is developed and in what it needs to contain. At the other end of the spectrum, others want a rule that is highly prescriptive and includes detailed national standards and processes.
Another major area of disagreement was how the planning process should consider and balance the multiple uses of the NFS, as well as local versus national and regional interests. Many people asked for a rule that emphasizes one resource area over another or prioritizes the needs of local communities over the needs and desires of people who live further from NFS lands. Others asked for a rule that requires plans to include direction for only restoration and preservation of ecological conditions, while others sought a rule that provides for and emphasizes a full array of multiple uses that contribute to social and economic opportunities.
While no rule can satisfy the entire spectrum of opinion, the Forest Service has worked to find a balance between these different needs and perspectives and has developed a proposed rule that is practical, workable, based on science, and reflective of public and agency values and input. The Agency is now eager to receive public feedback. Readers should carefully examine and consider the information in this preamble and proposed rule, as well as each of the alternatives that are described and evaluated in the accompanying draft environmental impact statement (DEIS). In particular, Alternatives D and E explore substitute or additional rule language that reflects comments received by the Agency during the public engagement process and the comment period for the notice of intent. Suggestions explored and analyzed in these alternatives include different approaches to rule text on management of water resources and watersheds, collaboration, climate change adaption and mitigation, monitoring, and planning for services that connect people to the unit, like conservation education and volunteer opportunities. Based on the public's continued feedback, the Agency will consider substituting or adding specific provisions on these subjects for inclusion in the final rule.
The Agency invites comments on each section of the proposed rule and on how provisions in the DEIS alternatives compare with the proposed rule. The Agency will carefully consider all public comments in preparing the final rule.
The following section-by-section descriptions are provided to explain the approach taken in the proposed rule to NFS land management planning. The proposed rule would create an adaptive framework based on science and public participation to guide unit-level land management planning for the NFS with a focus on integrated management of all forest resources. The overarching objective of this proposed rule is to move all NFS units toward social, economic, and ecological sustainability.
This section states that the purpose of Subpart A is to set out the planning requirements for developing, amending, and revising land management plans for the NFS in a national planning rule. The NFMA requires the Agency to have a planning rule developed under the principles of the Multiple-Use Sustained-Yield Act of 1960 (MUSYA). The planning rule sets requirements for land management planning and content of plans and applies to all units in the NFS.
The proposed planning rule is designed to guide the collaborative and science-based development, amendment, and revision of land management plans that would promote healthy, resilient, diverse, and productive national forests and grasslands. These plans would guide management of NFS lands so that they are ecologically sustainable and contribute to social and economic sustainability. Plans would guide management to maintain and restore resilient ecosystems and watersheds and diverse plant and animal communities. Plans would also guide management to provide people and communities with a range of social, economic, and ecological benefits for the present and into the future, including clean water; habitat for fish, wildlife, and plant communities; and opportunities for recreational, spiritual, educational, and cultural sustenance.
The proposed rule is designed to create a collaborative and science-based planning process so that plans and their amendments reflect public values and the best available scientific information. It is intended to ensure that managers understand the role and contribution of their units and the context for management within the broader landscape. It is also designed to facilitate adaptation, creating a feedback loop to allow responsible officials to respond to new information and changing conditions.
Comments from and discussions with the public as part of this rule-making effort revealed growing concern about a variety of risks and stressors impacting resources, services, benefits, and uses on NFS lands. Issues included, for example: Climate change; insects and disease; recreation, timber, and shifts in other local demands and national market trends; population growth and other demographic shifts; water supply protection; and other ecosystem support services. Addressing these types of issues, risks, and contingencies requires a larger landscape perspective, information from a broader spectrum of sources and users, and a framework that can facilitate adaptation.
Questions about multiple use and ecosystem services came up in the collaborative process for the rule.
The new requirements in the proposed rule should increase agency and unit capacity for adapting management plans to new and evolving information about risks, stressors, changing conditions, and management effectiveness. Agency intent is for responsible officials to use the proposed planning framework to keep plans and management activity current, relevant, and effective.
This section of the proposed rule also would require the Chief of the Forest Service to establish procedures for planning in the Forest Service Directives System that provide further explanation of the methods to implement the requirements of the rule. The Forest Service Directives System is designed to contain implementation requirements and protocols that are more detailed than the rule and provide guidance and direction on how to implement the rule. Directives can be updated as protocols and methods evolve and improve over time.
Some people wanted to see very detailed requirements in the rule, such as monitoring methods and protocols, while others emphasized the need to keep the rule simple so it would endure and could be implemented across different landscapes within the NFS. This section would ensure that the Agency would establish the needed detail in the Directives for effective implementation of the planning rule, while allowing rule language to remain strategic, relevant, and useful even as conditions change.
Finally, this section makes clear that the proposed rule would not affect treaty rights or valid existing rights, and that plans must comply with all applicable laws and regulations. It also includes direction for how responsible officials must treat certain information that is culturally sensitive to an Indian Tribe or Tribes.
Planning occurs at three levels—national strategic planning, NFS unit planning, and project or activity planning. Section 219.2 of the proposed rule describes these levels of agency planning and identifies specific attributes and requirements for unit-level planning. The first level is national strategic planning. At the second level of planning, land management plans are established for administrative units of the NFS (typically an individual forest, grassland, or prairie although in some instances, a plan will cover more than one forest or grassland). Land management plans (also called forest plans, or grassland plans), establish requirements and constraints for on-the-ground management decisions; they do not authorize projects or activities and do not commit the Forest Service to take any action. The proposed rule would provide guidance for this level of planning. The third level of planning includes development of on-the-ground projects and activities, which must be consistent with the unit's land management plan. The environmental effects of decisions made at the unit and project levels are analyzed and there are opportunities for public involvement at both levels.
Some members of the public suggested the Forest Service undertake two additional scales of planning, one at a regional scale between national and unit scales and another at a finer scale such as a ranger district or watershed. The 1982 rule required the preparation of a regional guide and a planning process for the development of that guide. The proposed rule does not include a requirement for regional planning. After several years of developing and using regional guides, the Agency found that they added an additional and time-consuming level of planning that often delayed progress of unit planning. Regional plans also tended to remain static and did not change as new information or science became available. Furthermore, most major issues that emerged regionally, such as issues regarding lynx or grizzly bears, were ultimately dealt with directly in the individual unit plans, usually through simultaneous amendment of multiple unit plans.
The proposed rule also does not include a requirement for finer scale planning (district or watershed scale) below the unit plan level. In many cases, units are building this kind of planning into the development of the management plan for the unit, with several of them using watersheds to organize planning. The proposed rule would allow for this to occur, and in § 219.7, would require identification of priority watersheds for restoration. However, on some units, watershed scale planning might not be appropriate or needed, such as on small NFS units or on units with highly intermixed ownerships. Some units that are influenced by disturbance regimes that are not defined by watershed boundaries may choose other ecological units on which to organize planning. This approach is intended to allow the responsible official to determine how planning on the unit is best organized based on the resources and desired conditions on the unit.
The proposed rule identifies the unit supervisor as the responsible official for unit-level plans. This is a change from the 1982 rule, which identified the regional forester as the responsible official. This change is intended to facilitate and encourage active public participation by ensuring that the person sitting at the table during the planning process is the decisionmaker.
During public participation to develop the proposed rule, the Agency heard from members of the public who felt that empowering the supervisor with decisionmaking authority would strengthen the collaborative process, while others preferred the current assignment of authority to the regional forester because of concerns that the unit supervisor may be more inclined to place too much of an emphasis on local needs and concerns without being sufficiently responsive to national needs or issues of regional consistency. In the proposed rule, the Agency tried to create a balance by ensuring that planning would not happen in isolation. There are a number of places in the proposed rule that call for coordination with other staff in the Agency, including the appropriate research station director. The regional forester and regional office planning and resource specialists would continue to be involved by providing an additional level of oversight, including reviewing draft and final products developed during the planning process and participating in the development of those products. Regional office oversight would help to provide consistency in interpretation and implementation of the planning rule and other agency planning requirements on units within the region.
The proposed rule also specifically would allow the option for a higher-level official, such as a regional forester,
This section of the proposed rule addresses the role of science in planning and would require that the responsible official take into account the best available scientific information. This requirement would apply throughout the planning process. The intent of this requirement is to ensure that the responsible official has access to and considers the best available scientific information in order to make informed decisions when developing, revising, and amending land management plans; that social, economic, and ecological science would be appropriately interpreted and applied throughout the planning process; and that the best available scientific information would increase the understanding of risks and uncertainties and improve assumptions made in the course of decisionmaking.
This proposed rule emphasizes the use of science as an important source of information for decisionmaking with the intent that the best available scientific information be used to inform, but not dictate, decisions. The term “taking into account” is used because this term expresses that science is just one source of information for the responsible official and only one aspect of decisionmaking. Land management planning is complex and decisonmakers must consider such things as balancing competing values or competing ecological concerns. There also may be competing scientific perspectives or uncertainty in the science. While the appropriate interpretation and application of science provides the foundation for planning, the Agency recognizes that other forms of information, such as local and indigenous knowledge, public input, agency policies, results of monitoring and the experience of land managers must also be taken into account.
This proposed rule imposes a duty on the responsible official to review the available scientific information and determine which is the best, that is, the most accurate, reliable, and relevant information for the particular matter under consideration. The responsible official does not have unfettered discretion in making this determination, but must demonstrate and document how the determination was made.
In some circumstances, the best available scientific information would be that which is developed using the scientific method, which includes clearly stated questions, well designed investigations and logically analyzed results, documented clearly and subjected to peer review. However, in other circumstances the best available scientific information for the matter under consideration may be information from analyses of data obtained from a local area, or studies to address a specific question in one area. In other circumstances, the best available scientific information could be the result of expert opinion, panel consensus, or observations, as long as the responsible official has a reasonable basis for relying on that information. Regardless of the source of the information, the Office of Management and Budget (OMB) Information Quality Bulletin on Peer Review may apply.
The proposed rule would require the responsible official to document how the best available scientific information was taken into account in the assessment report, the plan decision document, and the monitoring evaluation reports. Through this requirement, the Agency seeks to ensure science is considered throughout the planning process and decisions are well-thought-out and reasoned. This requirement would also provide transparency and an explanation to the public as to how science was used and how the responsible official arrived at important decisions.
It is important to note that the Agency is already required to incorporate science into decisionmaking. The Agency has a longstanding practice of considering relevant factors and explaining the bases for its decisions. Including this section in the proposed rule, with its explicit requirements for determining and documenting the consideration of the information most accurate, reliable, and relevant to making planning decisions, will help to ensure a consistent approach across the National Forest System. However, this section is not intended to impose a higher standard for judicial review than the existing “arbitrary and capricious” standard.
The requirements of this section of the proposed rule are also separate from those of NEPA (40 CFR 1502.22(b)), which requires the responsible official to seek out missing or incomplete scientific information needed for an environmental impact statement, unless the costs of doing so are prohibitive. This section of the proposed rule does not change that requirement. However, the requirements proposed in section 219.3 apply throughout the planning process, and are focused on ensuring the responsible official takes into account the best scientific information that is already available. Thus, while an assessment report or monitoring evaluation report may identify gaps or inconsistencies in data or scientific knowledge, this rule would not impose the affirmative duty that the CEQ regulation applies to EISs, that is, to engage in new studies or develop new information, or to document that the costs of seeking new information are prohibitive.
During the public participation process to create this proposed rule, questions were raised as to what, if anything, the rule should say about the role of science in decisionmaking. Some suggested that science should inform planning but not have a dominant or exclusive role in the decisions. Others wanted more structure or national standards. Many expressed the desire that the input of non-scientists be used to inform agency decisionmaking as many of the issues and problems have social and economic aspects that cannot be resolved through scientific or technical solutions. There were differing opinions on how science should be used to resolve differences in value judgments and how science and public participation should be integrated and weighted in the decisionmaking process. The Agency believes the proposed rule would strike the appropriate balance for using science as an integral and foundational, but not the sole, influence on planning.
The Forest Service Directive System would contain further detail on how to document the consideration of science including identifying the sources of data such as peer reviewed articles, scientific assessments, or other scientific information, and when applicable, the Forest Services' information quality guidelines and OMB's Information Quality Bulletin on Peer Review. Direction about science reviews may be found in Forest Service Handbook 1909.12—Land Management Planning, Chapter 40—Science and Sustainability.
The proposed rule seeks to ensure that the Forest Service provides meaningful opportunities for the public to participate early and throughout the planning process. This section lists the specific points during the planning process when opportunities for public participation would be provided. In order to meet these requirements, the responsible official must be proactive considering who may be interested in the plan, who might be affected by a
To develop the public participation requirements of this proposed rule, the Forest Service used the Council on Environmental Quality (CEQ) publication:
It is important to clarify that while this section of the rule commits the Agency to public participation requirements and encourages collaboration, the Forest Service would retain final decisionmaking authority and responsibility throughout the planning process.
A successful planning process must be socially inclusive in order to adequately reflect the range of values, needs, and preferences of society, and especially those who may be affected by land management planning. The outcomes of public participation can include a greater understanding of interests underlying the issues, a shared understanding of the conditions on the unit and in the broader landscape that provide the context for planning, the development of alternatives that could accommodate a wide range of interests, and the potential development of a shared vision for the unit, as well as an understanding of how and why planning decisions are made. People expressed the desire to participate at a number of points in the planning process, including, but not limited to, crafting the proposed plan revision or plan amendment and monitoring unit progress toward meeting the plan desired conditions, objectives, or other plan components.
The proposed rule specifically would require the responsible official to encourage participation by the public, Tribes, governments, scientists, and other individuals by sharing knowledge, ideas, and resources. It is also expected that the responsible official would rely on proactive, contemporary tools, such as the Internet, to encourage widespread participation.
Because the make-up and dynamics of the communities surrounding each planning area differ, and because the level of interest in decisionmaking may vary, based on the scope and potential impact of the decision being contemplated, the responsible official would need the flexibility to select the public participation methods that would best meet the needs of interested people and communities. Some people wanted a rule that contains thorough process and method requirements detailing how each unit would conduct public participation. Others wanted the responsible official to have full discretion for how public participation would be conducted. The Agency is proposing a balanced approach that would require the responsible official to engage a diverse array of people and communities throughout the planning process but would allow flexibility in the methods.
Many people discussed the need for the Forest Service to make a stronger effort to engage groups and communities that traditionally have been underrepresented in land management planning. This is reflected in the requirement that responsible officials encourage the participation of youth, low-income populations, and minority populations in the planning process and in the requirements to be proactive to use contemporary tools to reach out to the public and consider the accessibility of the process to interested groups and individuals. The Agency recognizes the need to engage a full range of interests and individuals in the planning process and the responsibility to promote environmental justice.
The proposed rule also acknowledges the Federal Government's unique obligations and responsibilities to Indian Tribes and Alaska Native Corporations in the planning process. The proposed rule recognizes the government-to-government relationship that creates a unique role for federally recognized Tribes. As required by Executive Order 13175, government-to-government consultation would continue throughout the development of plans separately, and in addition to, the process for public participation. The Agency also seeks to involve Tribes and Alaska Native Corporations throughout the planning process and the proposed rule would require the responsible official to encourage their participation in the public process. The responsible official would work with Tribes and Alaska Native Corporations to seek out native knowledge, including information about land ethics, cultural issues, and sacred and culturally significant sites as an additional opportunity for information sharing and dialog that would augment the consultation process.
Several Tribes and Alaska Native Corporations are concerned about keeping information confidential to protect sites from vandalism. Responsible officials will protect confidentiality regarding information given by Tribes in the planning process and may enter into agreements to do so. Participation in a collaborative process would be voluntary and would supplement, not replace consultation.
The Agency heard from Tribes and Alaska Native Corporations that the rule should clearly state how the rights and interests of Tribes and Alaska Native Corporations would be provided for in the planning process. The comments emphasized the obligations the Forest Service has to honor the exercise of treaty rights on NFS lands and the need to fully recognize the government-to-government relationship that exists between the Federal Government and federally recognized Indian Tribes. Requirements in this section of the proposed rule, as well as § 219.1, seek to respond to those comments.
Some local governments also asked that the planning rule require land management plans to strive for consistency with local government plans. The proposed rule would require that during the plan development or plan revision process, the responsible official would review the planning and land use policies of federally recognized Indian Tribes and of other Federal, State, and local governments and document the results of the review in
Requiring land management plans to be consistent with local government plans; however, would not allow the flexibility needed to address the diverse management needs on NFS lands and could hamper the Agency's ability to address regional and national interests on Federal lands. In the event of conflict with Forest Service planning objectives, consideration of alternatives for resolution within the context of achieving NFS goals or objectives for the unit would be explored.
This section provides an overview of a proposed new framework for land management planning that would require a three-part learning and planning cycle: assessment, development/revision/amendment, and monitoring. This new framework is science-based and would provide a blueprint for the land management process, creating a structure within which land managers and partners could work together to understand what is happening on the land, revise management plans to respond to existing and predicted conditions and needs, and monitor changing conditions and the effectiveness of management actions to provide a continuous feedback loop for adaptive management.
In the assessment phase, the responsible official would conduct a review of conditions on the ground and in the context of the broader landscape, using available ecological, social, and economic data to the extent possible. The assessment phase would lead to the identification of a potential need to change the unit's plan. In the development, revision, or amendment phase, the responsible official would work with other government agencies, Tribes, and the public to use the information gathered in the assessment phase to shape a proposed action that would respond to the need for change. This process would include scoping and public comment in accordance with agency National Environmental Policy Act (NEPA) procedures and would culminate in a plan decision. In the monitoring phase, the responsible official would implement a monitoring plan informed by the assessment and developed as part of the plan, revision, or amendment. This phase would give managers data to evaluate management actions and measure effectiveness, test assumptions, track changing conditions, and make adjustments to both projects and to the land management plan as needed.
This framework would also guide land managers in working with the public and partners before, during, and after plans are written, offering participation opportunities to partners and interested parties throughout the planning process. An open and participatory approach for each phase of the framework is intended to ensure planning efforts are well understood; informed by public knowledge and opinion; and responsive to ecological, social, and economic conditions that may be impacted by management on the unit.
The approach described in the proposed framework responds to the public's stated desire for participation throughout land management planning. The assessment phase would allow for early public participation—well before a proposed action—so that stakeholders could engage in joint fact-finding and develop a mutual understanding of the interconnections among social, economic, and ecological communities and systems. The development/revision/amendment element of the framework responds to the public desire to help develop and provide meaningful input to proposals for land management plans. The monitoring part of the framework responds to stakeholder's desires for a systematic, deliberate, monitoring approach that can inform, and be informed, by other monitoring efforts relevant to management on the unit. Both stakeholders and the Agency recognize the potential efficiencies of a uniform monitoring approach and hope to increase information sharing and learning opportunities.
The proposed framework embraces adaptive management in planning and reflects key themes heard from the public, as well as experience gained through the Agency's 30-year history with land management planning. The new proposed framework is intended to establish a more responsive and agile process that would allow the Agency to adapt management to changing conditions and improves management based on new information and monitoring. As proposed, the framework would support a more integrated and holistic approach to management recognizing the interdependence among all parts of the ecosystem including the communities (biotic and human) and systems (functions and values) that are part of each forest.
This section sets out both process and content requirements for assessments. Assessments are intended to provide a solid base of information and context for plan decisionmaking. The responsible official would have discretion to set the scale and scope of the assessment but would engage the public early and would encourage participation in the assessment process. The content of assessments would be used to develop new plans and plan revisions, to develop monitoring questions, and to provide a feedback loop. The scope and scale of an assessment could be comprehensive, such as those for a revision, or they could be narrow, such as those for an amendment focused on one issue.
Responsible officials would use assessments to determine the unique roles and contributions of the unit within the context of the broader landscape as well as the need to change the plan. Assessments should provide useful information to the responsible official to develop plan components and other content for a new or revised plan, to identify gaps in needed information that might be filled by a monitoring program, to identify changing conditions that the Agency might need to track, or to identify assumptions that should be tested later.
This section of the proposed rule would require an assessment prior to plan revision or development. The responsible official would reach out to the public, Tribes, Alaska Native Corporations, other Federal agencies, States, local governments, and scientists to start the assessment and help identify the questions and issues to be considered. The responsible official would also be required to coordinate with the regional forester, and agency staff from State and Private Forestry, Research and Development, as well as other governmental and non-governmental partners to consolidate existing information and develop strategies for satisfying any additional information needs. Early engagement with a diverse set of interests is needed to create an accurate depiction of the issues affecting the plan area and a solid base of understanding for any changes needed to the plan.
This section of the proposed rule would require the responsible official to document the assessment in a report or set of reports. To bring transparency and accountability to the assessment process, the reports would be available to the public. The report, or set of reports, would be included in the planning record and document how the relevant best available scientific information was taken into account. Within the report, the responsible official would identify how a new plan should be proposed or identify the potential need to change an existing plan based on the assessment.
At a minimum, the content of assessments for revisions and new plans would provide information to support development of plan components that meet the substantive requirements of other rule provisions such as sustainability (§ 219.8), diversity (§ 219.9), multiple uses (§ 219.10), and the timber requirements based on the NFMA (§ 219.11). In order that planners have sufficient information to meet the requirements set out in sections 219.8 through 219.11, assessments would include information on existing conditions, trends, and stressors, both on and off the unit, which might impact resources or ecological, social, or economic sustainability.
An assessment is expected to use existing information and be conducted rapidly in order to respond to changing conditions. Existing information may come from sources inside or outside the Forest Service, such as assessments conducted by other Federal agencies, statewide forest resource assessments, community wildfire protection plans, or state wildlife action plans. Existing information would be gathered and synthesized for relevant ecological, economic, and social conditions and trends within the context of the broader landscape. However, nothing in this section would restrict the responsible official from gathering new information to address the issues or questions for the assessment.
Because plan amendments vary in their complexity, this section provides a flexible approach to preparing an assessment for a plan amendment. Plan amendments would be based on a documented need for change but do not require an assessment. In some cases, the information from monitoring and evaluation would identify the need for change, or the need may arise from an unexpected proposed use such as a new permit application. Thus, there would be no need for an assessment. In other cases, the assessment would focus on an issue or question that only affects a portion of the plan area. In such a case, the scope of the assessment would be narrow and scale would be small. In other cases, particularly for complex issues that cross unit boundaries, the responsible official could conduct a more comprehensive assessment for an amendment.
This section sets out requirements for how to develop a new plan or revise an existing plan. This section has two primary topics: (1) The process for developing or revising plans and (2) the plan, which includes plan components and other content in the plan. Plans and plan revisions provide direction and guidance and management for the unit as a whole. Plan revisions are required every 15 years under the NFMA. Most plans would be revised in the 15-year period. However, the responsible official has the discretion to determine at any time that conditions on a unit have changed significantly such that a plan must be revised. A plan revision before the 15-year requirement has been rare in the past, and is expected to be rare in the future.
A plan revision is considered an entirely new plan even if it uses much of the same direction and guidance as the previous version.
The responsible official would begin by notifying the public of the start of a process to draft a proposed plan. That proposal would be informed by the assessment(s) that would identify the need to change the plan as well as information about the unique roles of the unit in the context of the broader landscape.
Drafting a proposed plan with public participation is a change from current planning processes. Typically, the responsible official appoints an interdisciplinary team to draft a proposed plan and then publishes it for public comment. Under the proposed rule, the public would have opportunities to shape the proposed plan while it is being drafted, however, these opportunities are not intended to prejudge the outcome of the NEPA process. This process change responds to the desire expressed during the collaborative process for this proposed rule that the public be involved early, before proposed plans are already drafted.
The process would include the preparation of an EIS with opportunities for consideration of alternatives during a public comment period. By crafting a proposed plan with public participation, it is expected that meaningful alternatives would be rapidly developed and evaluated in the EIS. The environmental analysis should be focused and the responsible official should reach a decision in a timely manner.
As part of the process for developing a proposal, this section would require the responsible official to, at minimum, review information from the assessment. This includes consideration of conditions, trends, and stressors that affect plan components as well as the identification of the presence and value of resources on the unit. The responsible official would also assess potential wilderness areas, eligible wild and scenic rivers, suitability of areas for resource management, and the quantity of timber that can be removed in accordance with NFMA requirements. The proposed plan would identify questions for the monitoring plan and potential other content in the plan. These requirements are designed to form a basis for developing plan components and content that would meet the requirements set forth in this proposed rule.
Many people have asked that the rule streamline planning; that it not include detailed processes and methods that may rapidly become outdated. By conducting an assessment using a collaborative approach prior to starting a new plan or plan revision and by working with the public to develop a proposal for a new plan or plan revision, the Agency expects that the actual preparation of a plan would be much less time consuming. These process requirements incorporate the best practices learned from the past 30 years of planning and the Agency believes these practices should be carried out in an efficient and effective manner.
This section sets out proposed requirements for plan components. Every plan would contain five plan components: desired conditions, objectives, standards, guidelines, and suitability of areas. Plans could also contain goals, an optional plan component. These plan components are based on techniques widely accepted and practiced by planners, both inside and outside of government. Every plan would contain at least one of each of the required five plan components—these are the central parts of a plan. Projects and activities would be required to be consistent with plan components.
Desired conditions identify an overall vision for the unit. When developed during a collaborative process with the public, desired conditions would provide a way to identify a shared vision for a plan area. Other plan components would provide the strategy and guidance needed to achieve that vision. A desired condition is generally supported by objectives that identify intended, measureable progress toward reaching the desired condition. Taken as a whole, objectives lead to the development of a proactive program of work of passive or active management designed to achieve the desired condition.
Standards, guidelines, and suitability (identifying lands within the planning area as suitable or not suitable for various uses) are intended to create a framework that would permit uses, projects, and activities that move the unit toward the desired conditions, while restricting uses, projects, or activities that may be inconsistent with achieving desired conditions.
Standards are mandatory constraints and do not allow for deviation. The Agency heard from the public that many people want the rule to include “default” standards, and others want a way for responsible officials to “opt-out” of standards when they do not fit the situation at hand. The Agency recognizes that circumstances on the ground differ from place-to-place. The proposed rule would require guidelines that, like standards, are requirements. Guidelines are not intended to allow an “opt-out,” but they would allow the responsible official some flexibility in how to meet the intent of the guideline, recognizing that different conditions may necessitate a different approach. Guidelines provide a means to protect resources in different ways depending on those circumstances.
Examples of a desired condition, objective, standard, and guideline for long leaf pine restoration are provided below.
These examples assume that during the assessment it was determined that the native ecological condition for a portion of the plan area on a coastal plain forest should be a long leaf pine savanna. The existing condition has 45 percent of the area dominated by loblolly pine forest with closed canopy and a sparse understory. The following statement would describe the desired condition, usually in terms of composition, structure, and function for ecological types.
Often a statement would follow regarding the vegetation structure:
The functions or processes in this ecological type would then be described:
In the suitability plan component, the plan would identify specific areas of the planning unit as being suitable or not suitable for certain types of uses or activities. The plans are not required to have suitability identified for any specific type of use or activity, with the exception that areas not suitable for timber production must be identified as required by the NFMA. Determining the suitability of a specific land area for a particular use or activity is usually based upon the desired condition for that area and the inherent capability of the land to support the use or activity. If the plan identifies an area as not suitable for a type of use or activity, such a use or activity may not be permitted within that area. If the plan identifies an area as suitable for a type of use or activity, authorization of such a use or activity in that area may be considered; however, site-specific analysis consistent with NEPA procedures and due consideration of relevant factors will always be needed before a specific use or activity can be authorized.
For example, a plan may identify an area as suitable for motorized recreation trails on stable soils, but the plan also has a guideline limiting motorized recreation during the nesting season. Before a new designated motorized trail can be opened in the management area, a site-specific analysis would need to determine which parts of the project area have stable soils and are thus suitable for the motorized trail. Consistent with the plan, a motorized trail may then be proposed within the management area on stable soils with a requirement that it be seasonally closed during the month of the nesting season. The site-specific analysis for the proposal would have to document consistency with the motorized trail suitability, the wildlife guideline, and any other applicable plan components.
A goal is an optional plan component that conveys a broad statement of intent. Usually, goal statements are not associated with on-the-ground conditions in contrast to desired conditions. Instead, goals express intentions about how processes or interactions with the public would be conducted under the plan. Examples of goal statements in current plans are:
Provide opportunities for the local populations to develop a unique connection—a sense of place—to the national forest.
Provide information about the natural and cultural environment to foster understanding of the uniqueness of the resources of the unit and to help develop ecological-based tourism.
Goals are optional plan components because some responsible officials find them useful while others do not. The proposed rule would allow the responsible officials flexibility to choose whether to include goals as a plan component.
The set of plan components must meet the substantive requirements for sustainability (§ 219.8), plant and animal diversity (§ 219.9), multiple uses (§ 219.10), and timber requirements based on the NFMA (§ 219.11) as well as other requirements laid out in the plan. While all plans must contain the required five plan components (desired conditions, objectives, standards, guidelines, suitability of areas, and may contain goals), not every issue or resource contained in a plan would require all five plan components. Through the planning process, the responsible official would determine the content of plan components needed to
In addition to the plan components, this section would require other content in the plan for integrated resource management. Other required content differs from plan components in that an amendment or revision would not be required for changes to be made to reflect new information or changed conditions.
This section sets out four requirements for other required content: The monitoring program, identification of watersheds that are a priority for maintenance or restoration, description of the unit's distinctive roles and contributions within the broader landscape, and information reflecting proposed and possible actions that may occur on the unit during the life of the plan. Other content could be included as needed.
The proposed monitoring program, described in § 219.12, would be required in every plan. A monitoring program has been included as other required content, but not as a plan component, so the program can be updated without a plan amendment. In the past, monitoring programs became outdated and ineffective because any changes required a plan amendment, which usually took a long time to complete. Since monitoring methods and protocols are constantly being refined, and since it may be important to add or change a monitoring question or indicator to be sure that the monitoring is effective and targeted to inform and improve management, it is important to have processes where changes can be made rapidly. Reflecting the importance that stakeholders place on monitoring, the proposed rule requires advanced public notice (§ 219.16) of any changes to be made in the monitoring program, along with an opportunity for the public to provide comment on the proposed change.
The proposed requirement that other required content include the identification of priority watersheds for maintenance or restoration is designed to complement the water-based sustainability requirements found in § 219.8. The Agency realizes that areas prioritized for potential restoration activities could change quickly due to events such as wildfire, hurricanes, drought, or the onslaught of invasive species. Therefore, this requirement is included in this section as other required content rather than in § 219.8 for plan components thus allowing an administrative change (§ 219.13) to be used to re-prioritize watersheds for maintenance or restoration.
The proposed requirement that the plan describe the unit's distinctive roles and contributions within the broader landscape is designed to ground the development of plan components in a context of capability and opportunity. The identification of the unit's roles and contributions directly supports development of desired conditions and objectives. The requirement should lead to each unit developing a plan that reflects its unique characteristics while addressing issues of importance for the NFS and setting priorities for management.
Sustainability is the fundamental principle that will guide land management planning. The intent is for plans to guide management so that NFS lands are ecologically sustainable and contribute to social and economic sustainability, with resilient ecosystems and watersheds, diverse plant and animal communities, and the capacity to provide people and communities with a range of social, economic, and ecological benefits for the present and future generations.
The requirements of this section of the proposed rule are linked to the requirements in the assessment (§ 219.6) and monitoring sections (§ 219.12). In addition, this section provides a foundation for the next three sections regarding diversity of plant and animal communities (§ 219.9), multiple uses (§ 219.10), and timber requirements based on the NFMA (§ 219.11). Together these sections of the proposed rule would guide the land management planning process for maintaining or restoring ecological sustainability on NFS lands and contributing to social and economic sustainability of the local communities and regions and the Nation.
The proposed requirements of this section are limited to what can be accomplished within the Agency's authority and the capability of the unit. This limitation arises from the fact that some influences on sustainability are outside the Agency's control, for example, climate change, extreme disturbance events, and urbanization on lands outside of or adjacent to NFS lands. Given those constraints, the Agency realizes it cannot guarantee sustainability. However, it can establish planning processes and practices that provide the best opportunity for maintaining or restoring sustainable ecological systems and contributing to social and economic sustainability.
It is important to note that plan components themselves could not compel agency action or guarantee specific results. Instead, they provide the vision, strategy, guidance, and constraints needed to move the unit toward sustainability. This section must be read with these constraints in mind.
A common theme brought up throughout the public involvement process was the importance of maintaining or restoring healthy, resilient ecosystems and the benefits that such resilient systems provide. Examples of such benefits include a reduced risk of catastrophic fire, clean abundant water, connected habitats for wide ranging species, and economic benefits. Those themes are reflected in the requirements of this section in the proposed rule.
The proposed requirements for plan components in this section are based on sound ecological principles that the health of aquatic and terrestrial systems is interdependent, and that they are shaped by processes at the landscape scale. When the Agency speaks of ecological sustainability in this document, the Agency means to maintain or restore ecosystem and watershed structure, function, composition, and connectivity.
The proposed rule, therefore, would require the development of plan components that maintain or restore the structure, function, composition, and connectivity of these systems as a whole and that maintain, protect, or restore key elements within each system. Management to maintain, protect, and restore ecosystems would include both active and passive management and require different levels of investment based on the difference between the desired and existing conditions of the system.
In designing plan components to maintain or restore ecosystems and watersheds, the proposed rule would require the responsible official to take into account the physical (including air quality) and biological integration of the terrestrial and aquatic ecosystems within a landscape. Because fire is an important ecosystem driver, the proposed rule would require that the responsible official would also take wildland fire and opportunities to restore wildland fire ecosystems into account. During the planning process, other potential ecosystem drivers, disturbance regimes, and environmental stressors, including climate change, would be identified, assessed, and considered when developing plan
Paragraph (a)(2) would require that the responsible official develop plan components to maintain, protect, or restore certain ecosystem elements. The first two elements would require the responsible official to develop plan components for aquatic and terrestrial areas, including lakes, streams, wetlands, forest stands, meadows, and other habitat types. These areas represent the individual elements that form a foundation for maintaining the health and resilience of the overall ecosystem or watershed. The third element would require plan components for rare aquatic and terrestrial plant and animal communities, which may have particular value as communities, consistent with the individual species and ecosystem diversity requirements in § 219.9. Finally, plan components would be required to protect, maintain, and restore clean, abundant water supplies (both surface and groundwater sources), and soils, and productivity recognizing their importance as fundamental ecosystem resources and services.
One of the original purposes for establishing the NFS was to protect our Nation's water resources. Of all land uses, forested land provides the highest quality water. National Forest System lands contain 400,000 miles of streams, 3 million acres of lakes, and many aquifer systems that together serve as the source of drinking water for more residents of the United States than any other source. The Agency administers over 90,000 water rights in cooperation with States; protects and improves habitat for more than 550 rare, threatened, and endangered aquatic species; provides outdoor recreation to more than 130 million visitors per year near streams, lakes, and other water resources; and supports access and operations for more than 200 hydroelectric facilities. National forests alone provide 18 percent of the Nation's water and over half the water in the West. The Organic Act, Weeks Act, MUSYA, and the NFMA all discuss the protection of water and/or watersheds.
Although forests are effective at maintaining hydrologic functions, there are areas on national forests where water resources are degraded. There are serious environmental and economic costs of depleting or damaging water resources and unsustainable water and land use practices pose risks to people and ecosystems. The quantity and quality of America's water and aquatic habitats are affected by our changing climate as well as by non-climate related stressors. Changing conditions and stressors can include changing water temperatures, variability in volume and timing of precipitation, and increased frequency and severity of floods. The requirements of this section recognize the importance of maintaining those watersheds and aquatic resources that are in good condition and restoring those that are not.
The proposed rule would require that plans include plan components to maintain, protect, and restore public water supplies, groundwater, sole source aquifers, and source water protection areas where they occur on NFS lands. Source water protection areas are areas delineated for public water systems as part of the State or tribal source water assessment and protection program and may include ground water or surface water or both. Under section 1424(e) of the Safe Water Drinking Act, sole source aquifers are defined as underground water sources that are designated by the Environmental Protection Agency and supply at least 50 percent of the drinking water consumed in the area overlying the aquifer.
Riparian areas are important elements of watersheds that provide critical transition zones linking terrestrial and aquatic ecosystems. The proposed rule would highlight the importance of maintaining, protecting, or restoring riparian areas and the values such areas provide by requiring that plans include plan components to guide management with riparian areas. The proposed rule also requires that plans establish a default width within which those plan components apply. The width of such zones is usually measured from the edge of the water, extending outward to the adjacent upland areas, and it could be a standard width for all riparian areas or it could vary based on the type of waterbody.
Additionally, riparian areas would be site-specifically verified over time, either during watershed or landscape assessments or when management actions are proposed that might affect riparian areas. The width of the actual riparian area would be based on the characteristics of the site and could be wider or narrower than the default width(s). Many NFS units already have actual riparian areas identified, while in some areas, for example wilderness areas, there may be no need to site-specifically delineate riparian areas. Restoration of riparian areas may be accomplished through passive management or may require active management, particularly in areas where natural disturbance such as fire or flooding have been excluded or where past management has altered function.
Public comment ranged between those who wanted very prescriptive national standards in the rule for such things as road density or riparian area widths and those who wanted very few requirements and ultimate flexibility at the unit level to determine the suite of plan components best suited to the unit's unique situation. The proposed rule reflects a balance by including requirements for plan components to guide management of these resources but not prescribing national standards that may not be ecologically appropriate or practical across all units. In this way, the Agency ensures that all plans will consistently include plan components for these critical resources while allowing the flexibility to design plan components that are ecologically appropriate to the unit.
During the public participation process to develop this proposed rule, there was a divergence of opinion on whether ecological sustainability should take precedence over social and economic sustainability or if the ecological system, the social system, and the economic system are of equal importance. The proposed rule considers the ecological, social, and economic systems as interdependent systems, which cannot be ranked in order of importance.
However, there is an important difference in the wording between the ecological and the social/economic sustainability requirements. The requirements for ecological sustainability would require responsible officials to provide plan components to maintain or restore elements of ecological sustainability. The requirements for social sustainability would require plan components to guide the unit's contribution to social and economic sustainability.
The distinction between these two sets of requirements recognizes the Agency has more influence over the factors that impact ecological sustainability on NFS lands (ecological diversity, forest health, road system management, etc.) than it does for social and economic sustainability (employment, income, community well-being, culture, etc.). National Forest System lands can provide valuable contributions to economic and social sustainability, but that contribution is just one in a broad array of factors that influence the sustainability of social and economic systems. Similar to the requirements for ecological
Section 219.8(b) of the proposed rule would require plans to include plan components to guide the unit's contribution to social and economic sustainability. In developing these plan components, the responsible official would be required to take into account through the collaborative planning process and the results of the assessment the social, cultural, and economic conditions relevant to the area influenced by the plan; the distinctive roles and contributions of the unit within the broader landscape; sustainable recreational opportunities and uses; multiple uses, including ecosystem services, that contribute to local, regional, and national economies in a sustainable manner; and cultural and historic resources and uses.
Several Tribes and Alaska Native Corporations requested the rule recognize and provide a framework for sustaining cultural services and benefits from national forests and grasslands, including cultural traditions, ways of life, and cherished spaces. Furthermore, several Tribes and Alaskan Native Corporations requested that sustainability be based on four equal aspects: Ecological, economic, social, and cultural sustainability. The Agency has defined sustainability as having three aspects since 1999: Ecological, economic, and social. Instead of adding a new aspect to sustainability, the Agency proposes that the planning rule require responsible officials to take into account cultural conditions when developing plan components for social and economic sustainability. An alternative way of dealing with this issue would be to require the responsible official to develop plan components for cultural resilience (The ability of cultural knowledge and expression to adapt to social, economic, and ecological change in ways that continue the core meanings of that knowledge and expression). The Agency welcomes public comment on the issue of cultural sustainability.
Requirements for specific elements that would contribute to social and economic sustainability are found in § 219.10 and § 219.11.
The Agency is committed to the goals of the Endangered Species Act (ESA) and the NFMA. This section of the proposed rule demonstrates agency commitment to meeting the NFMA requirement to provide for diversity of plant and animal communities based on the capability of the plan area. The Agency's intent is to keep common native species common, contribute to the recovery of threatened and endangered species, conserve candidate species, and protect species of conservation concern.
This section of the proposed rule addresses the diversity requirement by focusing on factors within agency control and using the best available scientific information to design a robust and achievable diversity standard. The proposed rule adopts a complementary ecosystem diversity and species conservation approach to provide for the diversity of plant and animal communities in the plan area and the long term persistence of native species. Known as a coarse-filter/fine-filter approach, this is a well-developed concept in the scientific literature and has broad support from the scientific community and many stakeholders. The coarse-filter should provide ecological conditions for the long-term persistence of the vast majority of species within the plan area. The fine-filter would identify specific habitat needs of species with known conservation concerns or whose long-term persistence in the plan area is at risk, and for which the coarse-filter protection is insufficient.
The wording in paragraph (a) for ecosystem diversity intentionally mirrors that found in § 219.8(a)(1) for ecological sustainability, as they are not intended to be separate processes or requirements. The requirements in § 219.8 (a)(1) for plan components to maintain or restore structure, function, composition, and connectivity of healthy and resilient terrestrial and aquatic ecosystems and watersheds would also meet the requirement of this section to retain or restore ecosystem diversity on the unit. The requirements are restated in both of these sections to emphasize the link between sustainability of terrestrial and aquatic systems and the diversity of plant and animal communities.
Specific agency policy direction for ecosystem diversity and species conservation using the coarse-filter/fine-filter approach, as well as for identifying species of conservation concern would be included in the Forest Service Directive System.
Paragraph (a) of this section of the proposed rule would require plan components for maintaining or restoring structure, function, composition, and connectivity of healthy and resilient terrestrial and aquatic ecosystems and watersheds to maintain the diversity of native species. This serves as the “coarse-filter” aspect of the diversity standard. The premise behind the proposed coarse-filter approach is that native species evolved and adapted within the limits established by natural landforms, vegetation, and disturbance patterns prior to extensive human alteration. Maintaining or restoring the ecological conditions similar to those under which native species have evolved therefore offers the best assurance against losses of biological diversity and maintains habitats for the vast majority of species in an area, subject to factors outside of the Agency control, such as climate change. Climate change and related stressors could affect many species and may make it impossible to maintain current ecological conditions.
Ecosystems are described in terms of their composition (vegetation types, rare communities, aquatic systems, riparian systems); structure (vertical and horizontal distribution of vegetation, stream habitat complexity, and riparian habitat elements); function (processes such as stream flows, nutrient cycling, and disturbance regimes); and the connection of habitats (for breeding, feeding, or movement of wildlife and fish within species home ranges or migration areas). Healthy ecosystems are indicated by the degree of ecological integrity related to the completeness or wholeness of their composition, structure, function, and connectivity. Resilience refers to the capacity of the system to absorb disturbance so as to retain essentially the same function. By working toward the goals of diverse native ecosystems with connected habitats that can absorb disturbance, it is expected that over time, management would create ecological conditions, through activities such as ecosystem restoration treatments, which support the abundance, distribution, and long-term persistence of native species within a plan area to provide for plant and animal diversity.
Paragraph (b) of this section sets forth three species-specific requirements for plan components that would provide the basis for the fine-filter approach to species conservation. The intent would be to provide plan components that identify specific habitat needs of species, when those needs are not met through the coarse filter. These species are threatened and endangered (T&E) species, candidate species, and species of conservation concern.
The first species conservation requirement in this section of the proposed rule is to maintain or restore
The second species conservation requirement proposed in this section of the proposed rule is to maintain or restore ecological conditions to conserve candidate species. These species are plants and animals for which the Fish and Wildlife Service has proposed listing under the ESA, but for which a listing regulation has not yet occurred. Under the ESA, candidate species do not receive special legal protections, as do threatened and endangered species. However, the agency would like to be proactive and take measures to ensure animal and plant species do not require protection under ESA. Candidate species are not the same as focal species (§ 219.12), but units may choose to use a candidate species as a focal species, as part of their monitoring program. The Agency is proposing to use its policy discretion to take steps to reduce the risks to candidate species from activities on NFS lands. These steps would include identifying specific ecological conditions for NFS land that would conserve candidate species and specifying plan components for the maintenance or restoration of those conditions.
The proposed rule would represent a higher level of protection for candidate species than currently exists in the planning process while still recognizing that candidate species may not have viable populations. Protection requirements for candidate species may at times contradict the protection requirements of other species or other management objectives. The Agency invites public comment on how it should address these circumstances in this rule.
The final species conservation requirement in this section of the proposed rule addresses the needs of species of conservation concern. A species of conservation concern is a species that is not threatened, endangered, or a candidate species, but is one for which the responsible official has determined there is evidence demonstrating significant concern about its capability to persist over the long term in the plan area. A viable population is defined in this proposed rule as a population of a species that continues to persist over the long-term with sufficient distribution to be resilient and adaptable to stressors and likely future environmental conditions. The responsible official would identify, where necessary, specific ecological conditions needed by these species that are not provided by the coarse-filter. The identification of species of conservation concern within the plan area could be based on several criteria, such as substantial scientific information as to the overall status of the species, the quantity and quality of species habitat within the plan area, and the potential for management activities to affect the species habitat within the plan area. Forest Service Directives would contain the criteria for selecting species of conservation concern. State lists of endangered, threatened, rare, endemic, or other classifications of species, such as those listed as threatened under State law; and other sources such as the Nature Serve conservation status system may be used to inform the selection of species of conservation concern.
The proposed rule's requirement for species of conservation concern would be to maintain or restore ecological conditions to maintain viable populations of species of conservation concern within the plan area, within the Agency's authority and consistent with the inherent capability of the plan area. Where a viable population of a species of conservation concern already exists within the plan area, the appropriate ecological conditions needed to maintain the long-term persistence of that species will continue to be provided.
At times, factors outside the control of the Agency prevent the Agency from being able to maintain a viable population of species of conservation concern within the plan area, such as when the range and current distribution of a species extends beyond NFS boundaries. In such cases, the proposed rule would require that the Agency provide plan components to maintain or restore ecological conditions within the plan area for that species, and by doing so to contribute to the extent practicable to a viable population across its range. Additionally, the responsible official would reach out beyond NFS boundaries to land managers who have authority where the species exists, to coordinate management for the benefit of a species across its range.
Some examples of plan components used for the fine-filter approach to address species-specific ecological conditions could be the following: a desired condition statement that describes the composition, structure, and function of a longleaf pine ecosystem that will provide optimum habitat conditions for red-cockaded woodpeckers; an objective for acres of occupied prairie dog habitat to facilitate the goal of reintroducing black-footed ferrets; a standard that sets a maximum road density that will improve habitat conditions for the Canada lynx or gray wolf; or a guideline that recommends a “no disturbing activities” time period within a specified distance of a known bald eagle or goshawk nest site during the critical breeding period.
The intent of the “diversity of trees and other plant species” requirement in this section of the proposed rule is to address the specific requirements of the NFMA to preserve, where appropriate, and to the degree practicable, the diversity of tree species similar to that existing in the region controlled by the plan. The proposed rule would require plan components to preserve diversity of native tree and other plant species. Preserving the diversity of tree species native to the unit will also preserve other native plant species. Meeting the requirements for ecosystem diversity and species conservation, as discussed above, would meet this provision as well.
As part of the Forest Service mission, the actions needed to recover T&E species and maintain or restore critical habitats are a high priority. Under the ESA, the Forest Service is to carry out “programs and activities for the conservation of endangered species and threatened species” (16 U.S.C. 1536 (a)(1)) and “insure that any action authorized, funded or carried out by [it] is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [designated critical habitat]” (16 U.S.C. 1635 (a)(2)).
Under the proposed rule, plans would address conservation measures and actions identified in recovery plans relevant to T&E species in the plan area. The Forest Service would continue to collaborate with the U.S. Fish and Wildlife Service (USFWS) and the National Oceanic and Atmospheric Administration (NOAA) in the development and implementation of recovery plans for these species. The Forest Service would also continue to work with USFWS, NOAA, States, and other partners to conserve and recover
The proposed rule would require the responsible official to explicitly recognize the recovery of T&E species as an important part of land management plans and provide plan components to maintain or restore ecological composition, structure, function, and connectivity. Additionally, the requirements in this section are linked to the proposed requirements for public participation, assessments, and monitoring (Sections 219.4, 219.6, and 219.12 respectively). Collectively these requirements are intended to have the responsible official work beyond the planning unit boundary to collaborate and cooperate with other landowners and land managers in working toward an all-lands approach to ecosystem and species diversity and conservation.
This section fulfills the diversity requirement of the NFMA, which directs the Forest Service to “provide for diversity of plant and animal communities based on the suitability and capability of the specific land area in order to meet multiple-use objectives, and within the multiple-use objectives of a land management plan adopted pursuant to this section, provide, where appropriate, to the degree practicable, for steps to be taken to preserve the diversity of tree species similar to that existing in the region controlled by the plan” (1604(g)(3)(B)).
The 1982 planning rule required the Forest Service to manage habitat to “maintain viable populations of native and desired non-native vertebrate species in the planning area” (47 FR 43048; September 30, 1982, section 219.19). The 1982 viability standard at times proved to be unattainable because of factors outside the control of the Agency. Some factors outside the control of the Agency include: (1) Species ranging on and off NFS lands; (2) activities outside the plan area (
Other stressors, such as invasive species, insects, disease, catastrophic wildfire, floods, droughts, and changes in precipitation, among others, will also affect species and habitat in ways that the Agency cannot completely control or mitigate for.
Additionally, it is important to note that the proposed rule is not limited to “vertebrate” species as required under the 1982 provisions. The proposed rule would include native plants and native invertebrates (fungi, aquatic invertebrates, insects, plants, and others) for which the Agency currently has very minimal biological information on their life histories, status, abundance, and distribution. However, maintaining or restoring ecosystem diversity within the plan area is the best opportunity to conserve these little-known species.
People suggested a broad range of approaches, including reinstating the 1982 viability provision; protecting and maintaining healthy habitats, with no species specific provisions; promoting biodiversity and measuring it with a biodiversity index; monitoring landscape characteristics as proxies for a suite of species; and including both habitat- and species-level standards with specific population monitoring requirements. In addition, some people emphasized the need to coordinate and cooperate beyond NFS unit boundaries for purposes of identifying and protecting critical habitat, migration corridors, and other habitat elements. The Agency believes that the proposed rule requirements to provide for the diversity of plant and animal communities are practical and meet the intent of the NFMA.
The intent of this section is to provide the requirements for developing plans that guide management for continued and sustainable multiple uses, including ecosystem services, through integrated resource management, and in the context of the requirements of sections 219.7-11.
NFS lands provide economic, social, and cultural sustenance for local communities; for Tribes; and for people across the Nation. Products and services generated on NFS lands continue to sustain traditional livelihoods, provide for subsistence uses, and provide new economic opportunities or benefits generated through sustainable recreation and tourism, restoration activities, ecosystem services, and renewable energy. National Forest System lands are also of immense social and cultural importance, enhancing quality of life; sustaining scenic, historic, and culturally important landscapes; sustaining traditional life ways; and providing places to engage in outdoor recreation, improve physical and mental health, and reconnect with the land.
The MUSYA has guided NFS management since it was enacted in 1960. The MUSYA expanded upon the original purposes for which national forests may be established and administered, which were identified in the Organic Administration Act: “to improve and protect the forest within the boundaries, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of citizens of the United States.” (Act of June 4, 1897 (16 U.S.C. 475)).
The MUSYA states that the Forest Service is to “administer the renewable surface resources of the national forests for multiple use and sustained yield of the several products and services obtained therefrom.” (16 U.S.C. 529). The MUSYA defines “multiple use” as “the management of all the various renewable surface resources of the national forests so that they are utilized in the combination that will best meet the needs of the American people; making the most judicious use of the land for some or all of these resources or related services (16 U.S.C. 531(a)). In the MUSYA, Congress declared that the national forests are established and shall be administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes (16 U.S.C. 528). The MUSYA also explicitly recognizes that “the establishment and maintenance of areas of wilderness are consistent with the purposes and provisions of [this Act].” (16 U.S.C. 529).
The Agency believes that MUSYA anticipated changing conditions and needs. In particular, the Agency's understanding of what is meant by the “several products and services obtained” from the national forests has changed since 1960, and incorporates all values, benefits, products, and services the Agency now knows the NFS provides, and what are now more typically identified as ecosystem services. Over time, the Agency expects understanding will continue to evolve.
The responsible official would use information gathered during assessment and the opportunities for public participation to consider a wide range of resources, potential stressors, foreseeable risks, and opportunities to work with neighboring landowners and partners to develop plan components.
The proposed rule would require the development of a set of plan components that provide for integrated resource management. This is a different approach than the 1982 rule, which focused on individual resources and provided detailed planning processes and guidance based on the type of resource. These requirements did not necessarily translate into integrated plan components and often led to fragmented management of resources within the ecosystem with each resource considered independently within the plan and within Agency management structures. In addition, the level of detail in the requirements was often not relevant or an appropriate fit for circumstances on an individual unit, resulting in Forest Service employees spending disproportionate time on processes that produced little value for plan direction and subsequent management.
Many people expressed a desire for very prescriptive national requirements established for various resources or program areas. Others expressed a desired for a more holistic approach to management focusing on the system as a whole. Still others wanted to see the planning process become “simpler” and “more elegant” without detailed procedures or national prescriptive standards that might become outdated or might not work for all units.
The Agency believes that an interdisciplinary process is the best way to achieve integration of all resource concerns, recognizing that ecosystems are complex communities of interconnected and interdependent resources and systems that function as a whole. To be effective, land management strategies must take into account a wide range of resource conditions and values and strive to achieve multiple benefits while managing the risk of adverse effects to interconnected systems.
This section would require that in meeting the requirements of § 219.8 and § 219.9, and within Forest Service authority, the capability of the plan area and the fiscal capability of the unit, the plan would provide for multiple uses, including ecosystem services, outdoor recreation, range, timber, watershed, wildlife, and fish. Paragraph (a) identifies nine factors the responsible official would be required to consider when developing plan components to provide for multiple uses, to the extent that each factor is relevant to the plan area. This requirement builds on a similar requirement in § 219.7(c)(2)(ii), as well as consideration of the resources on the unit during the assessment phase.
First, the responsible official would be required to consider the existence and relative value of the resources on the unit. The list included in the proposed rule is intentionally long in order to reflect stakeholder and agency staff comments that all relevant resources and stressors need to be considered during the planning process. There may be some uses or benefits not included in the list that could be considered if they arise in connection with plan development or revision. The Agency invites public comment on the scope of this list in § 219.10(a)(1). In addition to the resources included on the list, and any others that are relevant, § 219.10(a)(2) and (3) would direct responsible officials to consider renewable and nonrenewable energy and mineral resources on the unit in the context of the unit's contributions within the broader landscape, along with the sustainable management of infrastructure on the unit, such as recreational facilities and transportation and utility corridors.
The proposed rule would require responsible officials to consider opportunities to coordinate with neighboring landowners to link open spaces and take into account joint management objectives where feasible and appropriate. The responsible official would also be required to consider the landscape-scale context for management as identified in the assessment and the land ownership and access patterns relative to the plan area. These requirements reflect the “all-lands” approach the Agency is taking to resource management.
The responsible official would also be required to consider habitat conditions, subject to the requirements of § 219.9, for wildlife, fish, and plants commonly enjoyed and used by the public, such as species that are hunted, fished, trapped, gathered, observed, or needed for subsistence. This requirement is intended to respond to comments the Agency received, particularly from Indian Tribes and State game and fish departments, that certain species play a special role in contributing to social, cultural, and economic sustainability, and that plans should consider habitat for those species beyond what is required to provide diversity. Through this provision the Agency recognizes the important role of NFS lands in providing the habitat for these species subject to the provisions of §§ 219.8 and 219.9. This provision is not intended to require that units support the population goals of State agencies.
Paragraphs (a)(8) and (a)(9) would require that the responsible official take into account reasonably foreseeable risks to ecological, social, and economic sustainability and the potential impacts of climate and other system drivers, stressors, and disturbance regimes, such as wildland fire, invasive species, and human-induced stressors, on the unit's resources. These requirements would build on the assessment and lead into the monitoring phases of planning and are intended to ensure that the responsible official has a science-based understanding of the context for managing resources and providing for multiple uses. Paragraph (a) is not intended to require an exhaustive analysis; rather, the responsible official would consider existing information (§ 219.6), identify gaps and uncertainties in the information, and move forward with reasonable assumptions that could be monitored over time (§ 219.12).
This section further describes specific requirements for plan components for new plans or plan revisions. These requirements would be developed based on the set of resources considered in paragraph (a) that contribute to the unique role of the unit in the larger landscape.
The high value placed on recreation has been a common theme throughout the public participation process leading to the proposed planning rule. Many people said that the NOI ignored recreation as a stand-alone issue, and wanted the rule to address it separately from the other multiple uses. Others said that recreation should be considered along with, and equal to, all other multiple uses.
Americans make over 170 million visits to national forests and grasslands each year. These visits provide an important contribution to the economic vitality of rural communities as spending by recreation visitors in areas surrounding national forests amounts to nearly 13 billion dollars annually. Recreation is also a critical part of social sustainability, connecting people to nature, providing for outdoor activities that promote long-term physical and mental health, enhancing the American public's understanding of their natural
Section 219.8 would require the responsible official to take sustainable recreation opportunities and uses into account when developing plan components to contribute to social and economic sustainability. This section would go a step further, requiring that plan components provide for sustainable recreation, considering opportunities and access for a range of uses. It also calls for plans to identify recreational settings and desired conditions for scenic landscape character. The proposed rule defines sustainable recreation as “the set of recreational opportunities, uses and access that, individually and combined, are ecologically, economically, and socially sustainable, allowing the responsible official to offer recreation opportunities now and into the future. Recreational opportunities could include non-motorized, motorized, developed, and dispersed recreation on land, water, and in the air.”
Together, these requirements and those in sections 219.6 and 219.12 reflect the Agency's intent that the unit would understand recreation roles, demands, benefits, and impacts in the assessment phase; include a set of plan components to provide for sustainable recreational opportunities, uses, and access in the plan, revision, or amendment; and monitor visitor use and progress toward meeting recreational objectives in the monitoring phase.
The Agency recognizes the social, cultural, and economic importance of cultural and historic resources and uses. This section would require that plans would contain plan components designed to protect cultural and historic resources and uses. Our intent in using the word “protection” is to ensure that the responsible official takes into account the effect a plan may have on cultural and historic values and provides for these resources and uses, within the context of managing for multiple uses. The intent is not to create a preservation mandate; rather, where actions might impair the resources or use, the responsible official would seek to avoid or minimize potential harm to the extent practicable. In some cases, damage may occur if necessary to achieve a different multiple use objective.
We also recognize that Tribes may have areas within the national forest system that are of special importance to them, and our intent is to ensure that the responsible official recognizes those areas and provides appropriate management.
Section 219.8 would also require the responsible official to take cultural and historic resources on the unit into account when developing plan components to contribute to social and economic sustainability. Benefits of cultural and historic sites include expanded knowledge and understanding of history; cultural and spiritual connections to our heritage; scientific data about past cultures or historical conditions and similar matters; and tourism that benefits rural economies. The Agency considers these resources very important for social sustainability as well as important economic contributors.
This section would require that plan components provide for the protection of designated wilderness areas and wild and scenic rivers, and for the protection of recommended wilderness and eligible or suitable wild and scenic rivers in order to protect the ecologic and social values and character for which they may at some point be included in the system(s). These requirements meet agency responsibilities under the Wilderness Act and the Wild and Scenic Rivers Act and are consistent with the recognition in the MUSYA that wilderness protection is a valid multiple use. Wilderness areas provide important places for recreation, solitude, and renewal; are refuges for species; and, like cultural and historic sites, can attract tourism that benefits rural economies.
Some members of the public wanted the rule to include additional restrictions on uses within recommended wilderness areas and for eligible or suitable wild and scenic rivers. The Agency believes the requirement in the proposed rule meets the Agency's intent to ensure, in the case of recommended wilderness, that the types and levels of use allowed would maintain wilderness character and would not preclude future designation as wilderness, and, in the case of eligible or suitable wild and scenic rivers, that no modification to the free-flow, river-related values, or classification would be allowed which would preclude future designation.
The Agency also manages other kinds of designated areas, including experimental forests, national heritage areas, national monuments, national recreational areas, national scenic trails, research natural areas, and scenic byways. These are areas or features within a planning unit with specific management direction normally established through a process separate from the land management planning process, including by statute or through a different administrative process. These areas can contribute in important ways to social and economic sustainability as well as ecologic sustainability. This section would require that plan components provide protection and appropriate management guidance for those areas, based on the purpose for which the area is established.
Timber is one of the multiple uses of the NFS, as recognized by the MUSYA and the Act of 1897, also known as the Organic Administration Act. The National Forest Management Act of 1976 at the time signaled a new direction for the planning and management of NFS lands, especially with regard to management of the timber resource and impacts to other resources. Management and use of timber harvest on NFS lands continue to evolve. Today, harvest of timber on NFS lands occurs for many different reasons, including restoration of ecological resilience, community protection in wildland urban interfaces, habitat restoration, and protection of municipal water supplies. Timber harvest also supports economic sustainability through the production of timber, pulp for paper, specialty woods for furniture, and fuel for small-scale renewable energy projects. Timber harvesting, whether for restoration or wood production objectives, also provides employment and tax revenue in many counties throughout the country.
This section would meet the statutory requirements of the NFMA related to management of the timber resource. It includes provisions for identification of lands as suitable or not suitable for timber production. It would allow for timber harvest on lands unsuitable for timber production for other reasons, such as for: achieving desired conditions and objectives of the plan, multiple use purposes, sanitation, salvage, or protection of public health
The specific factors proposed in this rule for identifying lands not suitable for timber production are based on the NFMA requirements limiting timber harvest (16 U.S.C. 1604(g)(3)(E)) and agency policy. Lands would be suitable for timber production unless they are identified in the plan as not suitable, and, as required by the NFMA, lands not suitable for timber production must be reviewed every 10 years to determine whether they are still not suitable. The proposed rule clarifies that timber harvest on lands suitable for timber production can also occur for other reasons, including resource management, restoration, or community protection.
Paragraph (a)(1)(iv) of this section is a specific factor that would not allow lands to be identified as suitable for timber production unless technology is currently available for conducting timber harvest without causing irreversible damage to soil, slope, or other watershed conditions or substantial and permanent impairment of the productivity of the land. Available technology may vary from place to place, and could be any of the following: Horse logging, ground based skidding, aerial systems, or cable logging systems. This provision has been in place since the 1979 rule, to meet the NFMA obligation to consider physical factors to determine the suitability of lands for timber production. The factor has been effective in protecting watershed conditions.
In addition, the proposed rule at paragraph (d) of this section would require plan components to ensure that timber will be harvested from NFS lands only where such harvest would not violate the NFMA prohibition of timber harvest that would irreversibly damage soil, slope or other watershed conditions (16 U.S.C. 1604(g)(3)(E)(i)). This prohibition applies whether the harvest is for timber production or other purposes, and whether or not lands were identified as suited for timber production.
Some people requested the proposed rule change or add to the NFMA criteria for defining lands not suitable for timber harvest. The Agency believes that the NFMA provisions continue to provide a firm foundation for identifying these lands. The proposed rule includes an additional requirement that would prohibit timber production where it is not compatible with the achievement of desired conditions and objectives established by the plan, including those desired conditions and objectives designed to meet requirements for plan development or revision (§ 219.7); social, economic, and ecological sustainability (§ 219.8); plant and animal diversity (§ 219.9); multiple uses (§ 219.10); and timber (§ 219.11). Some people requested that additional limits be placed on the harvest of timber on lands not suitable for timber production. The Agency believes that the provisions of this section would provide a balanced approach, allowing timber harvest on lands not suitable for timber production if it serves as a tool for achieving or maintaining plan desired conditions or objectives. Timber harvest today is used often to achieve ecological conditions and other multiple use benefits for purposes other than timber production; therefore we have included § 219.11(b)(2) in the proposed rule to clarify.
Paragraph (d) sets forth limits on timber harvest, regardless of the reason, on all NFS lands. All plans would, at a minimum, comply with the limitations set forth by the NFMA (16 U.S.C. 1604(g)(3)(E) and (F)). These requirements would limit harvest to situations where the productivity of the land could be sustained and harvesting prescriptions are appropriately applied. These requirements are referenced but not repeated because the Agency believes they are incorporated and enhanced by the requirements for resource protection and plan compatibility set forth in this section of the proposed rule. However, paragraph (d) does reiterate that harvests must be carried out in a manner consistent with the protection of soil, watershed, fish, wildlife, recreation, and aesthetic resources.
Paragraph (d) also includes requirements that track the NFMA at 16 U.S.C. 1604(g)(3)(F) regarding even-aged timber harvest. These requirements: (1) Limit clearcutting to locations where it is determined to be the optimum method for regenerating the site; (2) require interdisciplinary review of the harvest proposal; (3) require cutting to be blended with the natural terrain; (4) establish maximum size limits of areas that may be cut; and (5) require that harvest is consistent with resource protections. These limits on the maximum opening sizes were established in the 1979 planning rules and have been in use under the 1982 rule. There were no issues raised about these default maximum size limits in the public comments on the notice of intent or in the collaborative round tables. The procedure for varying these limits is an established process and has worked effectively, providing a limit on opening size and public involvement with higher level approval for exceeding the limits.
The Agency believes that the procedure for varying from these limits may be particularly justifiable in the future for ecological restoration, species recovery, improvement of vegetation diversity, mitigation of wildland fire risk, or other reasons. For example, some rare species are adapted to large patch sizes with similar habitat attributes for critical parts of their life cycle.
Many of the specific NFMA requirements related to timber harvest are not reiterated in the text of the proposed rule, but are incorporated by reference. Some requirements are not repeated because they are addressed by other regulations; for example, the NEPA regulations direct environmental analysis and the use of interdisciplinary teams. Other requirements are not repeated because they are addressed under separate sections of the proposed rule. For example, the minimum harvest limitations are not repeated because § 219.8 incorporates and exceeds the requirements of the NFMA.
Many of the NFMA provisions referenced or included in this section refer to project level activities. The proposed planning rule provides the proposed guidance for developing plans, not guidance for individual projects, and it is important to recognize that any individual timber project or activity could not provide for all aspects of social, economic, or ecological sustainability. However, all projects and activities must be consistent with the plan components developed to meet the requirements of sustainability, diversity, and multiple uses (§§ 219.8 through 219.10), as required by § 219.15.
Monitoring is a critical part of the proposed planning framework that provides a feedback loop for adaptive management and is intended to test assumptions underpinning management decisions, track conditions relevant to management of resources on the unit, and measure management effectiveness and progress toward achieving desired conditions and objectives.
This section sets forth the proposed requirements for the monitoring program, including unit-level and broader-scale monitoring. The unit-level monitoring program would be informed by the assessment phase, developed
In developing the monitoring program, the Agency intends for responsible officials to coordinate with each other, with other parts of the Agency, and with partners and the public. The proposed rule also would require that the responsible official ensure that monitoring efforts are integrated with relevant broader-scale monitoring strategies to ensure that monitoring is complementary and efficient, and that information is gathered at scales appropriate to the monitoring questions. The Agency does not intend for the requirements in this section to lead to an exhaustive or research-based program; monitoring must be targeted toward information needed to inform management of resources on each unit.
The unit-level monitoring program could be changed either in a plan revision or amendment, or through an administrative change (§§ 219.6 and 219.13).
As proposed, the unit-level monitoring program would be part of required other content in the plan, developed by the responsible official, or two or more responsible officials, during development of a new plan or plan revision, with input provided by the public through opportunities for public participation throughout the planning process. The unit-monitoring program sets out unit-monitoring questions and associated indicators, which would be designed to inform the management of resources on the unit.
The responsible official would have the discretion to determine the scope and scale of the monitoring program that best meets the information needs identified through the planning process as most critical for informed management of resources on the unit, taking into account existing information and the financial and technical capacity of the Agency.
This section has eight specific requirements for every unit-monitoring program. This set of requirements is designed to link the monitoring program back to the assessment and plan development or revision phases of the planning framework and to the substantive content requirements set forth in other sections of the proposed rule, thereby creating a feedback loop for adaptive management. A range of monitoring techniques may be used to meet the eight specific requirements.
Every monitoring program would contain one or more questions or indicators that address each of the following: the status of select watershed conditions; the status of select ecological conditions; the status of focal species; the status of visitor use and progress toward meeting recreational objectives; measurable changes on the unit related to climate change and other stressors on the unit; the carbon stored in above ground vegetation; the progress toward fulfilling the unit's distinctive roles and contributions to ecological, social, and economic conditions of the local area, region, and Nation; and finally, the effects of management systems to determine that they do not substantially and permanently impair the productivity of the land.
Monitoring for ecological and watershed conditions is intended to support achievement of the sustainability and diversity requirements of §§ 219.8 and 219.9, and the provisions of multiple uses including ecosystem services in § 219.10.
The proposed requirement that monitoring questions address the status of visitor use and progress toward meeting recreational objectives is intended to support achievement of the sustainable recreation requirements of § 219.8 and the multiple use requirements of § 219.10.
Monitoring questions developed to measure changes on the unit related to climate change and carbon stored in above ground vegetation are intended to help responsible officials understand potential impacts to resources from climate change, as well as contributions of the unit to carbon storage. Currently, the Agency tracks information about climate change influences and carbon storage using the Forest Inventory and Analysis (FIA) through protocols of the Research and Development branch of the Forest Service. The FIA protocol has been an ongoing process for some time. Although they are a required part of the unit monitoring program, it is likely that these monitoring requirements would be coordinated with other agency actions on climate change, and would be met using a broader-scale approach.
Monitoring questions to measure progress toward fulfilling the unit's distinctive roles and contributions to the ecological, social, and economic conditions of the local area, region, and Nation are intended to help the responsible official understand how resources on the unit would contribute to sustainability both locally and in the context of the broader landscape. Monitoring questions that focus on the plan components of desired conditions (the vision for future conditions) and objectives (strategy to make progress toward achieving desired conditions) are expected to be most useful for meeting this requirement.
Monitoring to determine that management systems are not substantially or permanently impairing the productivity of the land is intended to meet the NFMA requirements.
The proposed requirement for monitoring questions that address the status of focal species is linked to the requirement of § 219.9 of the proposed rule to provide for ecosystem diversity, which describes the coarse filter approach for providing diversity of plant and animal communities. The term “focal species” is defined in the rule as: a small number of species selected for monitoring whose status is likely to be responsive to changes in ecological conditions and effects of management. Monitoring the status of focal species is one of many ways to gauge progress toward achieving desired conditions in the plan.
There are several categories of species that could be used to inform the selection of focal species for the unit. These include indicator species, keystone species, ecological engineers, umbrella species, link species, species of concern, and others.
Monitoring the status of selected focal species over time is intended to provide insight into the integrity of ecological systems on which those species depend and the effects of management on those ecological conditions (
The choice to have the proposed rule require monitoring of focal species as well as select ecological and watershed conditions is a shift from the 1982 rule's requirement to specifically monitor
The proposed rule would require the regional forester to develop a broader-scale monitoring strategy for those monitoring questions that could best be answered at a scale broader than one unit; for example, detecting changes in conditions related to wide-ranging or migratory species or measuring stressors such as climate change.
The proposed broader-scale monitoring strategy would be a new requirement for the Agency. Other options were considered, such as requiring only a unit-level monitoring program without any specific monitoring requirements. However, the Agency believes that having broader-scale monitoring strategies provides a way to distribute the monitoring workload most efficiently. Unit-level monitoring would be focused on answering questions directly related to the management of an individual plan area, and that are within the capability of the unit to measure. Broader-scale monitoring would look at how plans fit within the larger landscape, taking into account drivers and stressors affecting large ecosystems, multiple land ownerships, and information available from other branches of the Agency as well as other governmental and nongovernmental partners.
The Agency recognizes that the timing of plan revisions and the development of broader-scale strategies needs to be coordinated. In some cases, a plan revision for a unit may not be scheduled for 8 or 10 years, which would delay the development and implementation of an effective broader-scale strategy. To address this concern, the Agency proposes that within 4 years of the effective date of the rule, or as soon as practicable, all units would change their unit-monitoring program to comply with the requirements of this section.
Many scientists, agency employees, and the public emphasized the importance of using monitoring to measure the effectiveness of plans and regularly evaluate monitoring results to change the plan or to change management activities. Others wanted to use pre-determined thresholds, called triggers, to initiate a change to management activities. These concerns are addressed by the proposed requirement that the responsible official conduct a biennial evaluation of the monitoring information and determine whether there is a need for an administrative correction, a plan amendment, or plan revision. The biennial evaluation of monitoring information is intended to provide a report on progress toward meeting desired conditions and other plan components to determine whether additional actions are necessary. The biennial monitoring evaluation does not need to evaluate all questions or indicators on a biennial basis but must focus on new data and results that provide new information for management.
The Agency considered other timeframes for the evaluation, such as an annual evaluation or a 5-year evaluation. The Agency experience is that an annual evaluation is too frequent to determine trends or to accumulate meaningful information and the 5-year time frame is too long to wait in order to respond to changing conditions. Therefore, the Agency proposes that the monitoring evaluation would occur at a 2-year interval.
The Agency also considered requiring pre-determined thresholds or triggers to initiate a change to management activities. The Agency experience is that pre-determined thresholds may be quite difficult to develop and therefore may take years to formulate when there is uncertainty regarding scientific or other information. Instead, during the biennial evaluation, the responsible official would decide whether the monitoring data indicates that a change to the plan or management activities is warranted. Changes to the monitoring program would also be considered based on the evaluation, to ensure that monitoring remains effective and relevant.
The first monitoring evaluation for a plan or plan revision developed under this proposed rule would have to be produced no later than 2 years from the time of plan approval. For plan monitoring programs that were developed under the provisions of a prior planning regulation, the first monitoring evaluation would have to be produced no later than 2 years from any change made to meet the requirements of this section. The proposed rule would require all units to change their monitoring programs to conform to this section of the rule within 4 years of the effective date of the rule, or as soon as practicable.
The public notice of the availability of the monitoring evaluation report may be made in any way the responsible official deems appropriate (§ 219.16(c)(5)). The responsible official may post on the Forest Service Web site. The responsible official may postpone the monitoring evaluation for 1 year after providing notice to the public in the case of exigencies such as a natural disaster or catastrophic fire.
This section sets out the proposed process for changing plans through plan amendments or administrative changes. The requirements in this section are intended to facilitate rapid amendment and adjustment of plans. The section would allow the responsible official to use new information obtained from the monitoring program or other sources and react to changing conditions to amend or change the plan.
Public comments emphasized the need for the Agency to have a framework for adaptive management. Under this proposed rule's framework, the Agency anticipates the availability of more complete information provided through the unit-monitoring program and evaluation reports. The framework is also expected to facilitate more collaboration with the public and a more efficient amendment process. Comments about how to change the plan ranged from a desire for a flexible and rapid approach to plan changes, to those who wanted more structure and requirements for both the process of planning and actual content of the plan. The Agency believes the approach taken in the proposed rule strikes an appropriate balance with rule requirements commensurate with the three methods of changing the plan described below.
Plan revisions as described in § 219.7 contain more comprehensive requirements, as the revision stage is the appropriate time for a comprehensive evaluation of the plan. As noted in § 219.7, plan revisions are required every 15 years. However, the responsible official has the discretion to determine at any time that conditions
Plan amendments incrementally change the plan as need arises. Plan amendments could range from project specific amendments, amendments of one plan component, to the amendment of multiple plan components. Finally, the proposed rule allows for administrative changes, which would allow for rapid correction of errors in the plan components and rapid adjustment of other content in the plan.
The proposed rule would provide that the responsible official could amend plans or change the plan at any time. Plan amendments would be required whenever a plan component would be materially altered (clerical errors could be corrected by an administrative change). Plan amendments may change other content in the plan. The process requirements for plan amendments and administrative changes would be simpler than those for new plan development or plan revisions in order to allow responsible officials to keep plans current and adapt to new information or changed conditions.
The proposed rule would require that for new plans or plan revisions responsible officials conduct an assessment and collaboratively develop the plan proposal prior to issuing a proposed plan and environmental documents, entertaining objections to the proposed plan, and approving the plan or plan revision. Amendments may include each of those steps, but the proposed rule would allow the responsible official to rely on a documented need to change the plan to propose an amendment without doing an assessment or including the separate process step of developing a proposal before issuing a proposed amendment.
An amendment would be preceded by a documented need to change the plan, set out in an assessment report, monitoring evaluation report, or other source. For example, a monitoring evaluation report may show that a plan standard is not sufficiently protecting streambeds, indicating that a change to that standard may be needed to achieve the unit's objective or desired condition for riparian areas. In that case, the responsible official could choose to act quickly to propose an amendment to change that particular plan component, without doing an additional assessment or developing a proposal that goes further than the specific need to change the plan clearly indicated by the monitoring report.
However, the responsible official could choose to conduct an assessment and take additional time to develop a proposal when the potential amendment is broader or more complex or requires an updated understanding of the landscape-scale context for management. For example, a monitoring evaluation report may indicate that a new invasive species is affecting forest health on the unit. The responsible official may want to conduct an assessment to synthesize new information about the spread of that species, how other units or land management agencies are dealing with the threat, what stressors make a resource more vulnerable to the species, how the species may be impacting social or economic values, or how neighboring landowners are approaching removal of the species. The outcome of the assessment may identify a need to change the plan through an amendment. The responsible official, consistent with the requirements for public participation in § 219.4, would then collaboratively develop with the public a proposal to amend several plan components to deal with the invasive species.
For plan amendments done to make a specific project or activity consistent with a plan, the project analysis alone would likely suffice to document the need to change the plan.
All plan amendments must comply with Forest Service NEPA procedures. The proposed rule provides that appropriate NEPA documentation for an amendment could be an EIS, an environmental assessment (EA), or a categorical exclusion (CE) depending upon the scope and scale of the amendment and its likely effects.
Administrative changes would be permitted to correct clerical errors to plan components, to alter content in the plan other than the plan components, or to achieve conformance of the plan to new statutory or regulatory requirements. A clerical error is an error of the presentation of material in the plan such as phrasing, grammar, typographic errors, or minor errors in data or mapping that were appropriately evaluated in the development of the plan, plan revision, or plan amendment.
An administrative change could not otherwise be used to change plan components or the location in the plan area where plan components apply, except to conform the plan to new statutory or regulatory requirements. Whether an administrative change or an amendment would be done to conform plan components to a new statutory or regulatory requirement would depend upon the requirement. A requirement that would allow no discretion in management would call for simply an administrative change, as there would be no decision for the responsible official to make, and no reason for public input. For example, an addition of lands to an existing wilderness boundary would call for simply extending the wilderness plan components to the newly included lands, as there would be no reason to manage those lands differently from the rest of the wilderness. In contrast, designation of an entirely new wilderness would require a plan amendment to ensure appropriate public involvement in the development of plan components for the new wilderness area.
Other content in the plan that could be altered with an administrative change, as identified in § 219.7(e), includes the monitoring plan, the identification of watersheds that are a priority for maintenance or restoration, the unit's distinctive roles and contributions, and information about proposed or possible actions that may occur on the unit during the life of the plan. The plan may also include additional items such as other content in the plan, including management approaches or strategies; partnership opportunities and coordination activities; or criteria for priority areas or activities to achieve objectives of the plan.
An example of how the responsible official may conform the plan to a new statutory requirement would be if a new wilderness bill becomes law and it adds land to an existing wilderness area. To comply with the law, the responsible official may modify the management area map contained within the plan through an administrative change. This change would allow the existing plan components for the existing wilderness area to apply to the additional land. If the responsible official determines an administrative change is appropriate, the responsible official would post notice of the administrative change on the planning unit's Web site.
The proposed rule would require the responsible official to provide public notice before issuing an administrative change. If the change would be to the monitoring program, the responsible official would provide public notice and an opportunity for the public to comment on the intended change and consider public concerns and suggestions before making a change. Following this notification, the
The proposed rule would require the responsible official to record approval of a new plan, plan revision, or amendment in a decision document prepared according to Forest Service NEPA procedures. This section describes requirements for decision documents and associated records for approval of plans, plan amendments, or plan revisions.
Many members of the public have expressed a desire for greater transparency to help understand decisionmaking in the development, revision, and amendment of plans. The proposed rule would require the decision document to describe the rationale for approval of a plan. It further would require that the decision document include an explanation of how plan components meet plan requirements for sustainability and diversity set forth in §§ 219.8 and 219.9. This explanation would allow the responsible official to say what the plan components are designed to do given the limits of Forest Service authority and the capability of the plan area. In addition the explanation would be required to describe how the plan applies to approved projects and activities (§ 219.15(a)), and how the best available scientific information was taken into account and applied (§ 219.3). The decision documents must contain research station director concurrence on experimental forests and ranges (§ 219.2(b)(4)) to ensure proper coordination between the Research and NFS branches for the management of these areas. The effective date of approval (§ 219.17) would also be required to clarify the exact date the plan action takes effect.
These requirements would help provide a clearer understanding of the approval, the reasons for approving the plan, plan revision, or plan amendment and its immediate consequences in a way that is clear to all participants in the planning process.
Meeting the proposed requirements for a plan development or plan revision would require a comprehensive discussion of each of these requirements with respect to the plan. For an amendment, these requirements would only need to be described for those plan components being changed by the plan amendment. For example, if a plan amendment does not change plan components applicable to an experimental forest or range, there would be no need to document the research station director's concurrence with the amendment. For plan development or revision, the decision document would also be accompanied by a final EIS. A plan amendment would be accompanied by appropriate NEPA documentation.
This section also sets forth basic requirements for the responsible official to maintain public documents related to the plan and monitoring program. It would require the responsible official to ensure that certain key documents are readily accessible to the public online and through other means. The published planning documents associated with a plan, plan revision, or amendment are listed in paragraph (b)(1) of this section. These documents must be posted online. Other documents that support the analytical conclusions and alternatives of the planning process would be part of the planning record and must be available to the public although they would not be required to be online. The planning record for each plan, plan revision, or amendment would be required to be maintained and available to the public at the office that developed that plan, plan revision, or amendment.
The NFMA requires that “resource plans and permits, contracts and other instruments for the use and occupancy of National Forest System lands shall be consistent with the land management plans” (16 U.S.C. 1604(i)). However, no previous planning rule provided specific criteria to evaluate consistency of projects or activities with the plan. Forest Service policy was that consistency could only be determined with respect to standards and guidelines, or just standards.
The Forest Service's position has been that a project's consistency with a land management plan could only be determined with respect to standards and guidelines, because an individual project by itself could almost never achieve objectives and desired conditions. Objectives and desired conditions are long-term aspirations whose achievement would depend on the cumulative effect of a number of agency actions, and often on factors outside the agency's control.
We continue to believe that the consistency requirement cannot be interpreted to require achievement of the aspirational components of a plan, but we believe that we can interpret the consistency requirement, in a way that makes those components more meaningful in the day-to-day management of the unit. The proposed rule therefore would provide that each project must be expected to either to move the plan area toward desired conditions and objectives, or at least not to preclude the eventual achievement of desired conditions or objectives.
This interpretation would apply to plans developed under this rule. Plans developed under prior rules were not developed with this interpretation in mind, and therefore applying this interpretation to projects governed by such plans would not be feasible or appropriate.
This section would provide that projects and activities authorized after approval of a plan, plan revision, or plan amendment developed pursuant to this rule must be consistent with plan components as set forth in this section. Project approval documents would have to describe how the project or activity is consistent in order for it to be considered as such. The proposed rule specifies criteria to evaluate consistency with the plan for each plan component.
The proposed rule states that a project or activity must contribute to the maintenance or attainment of one or more goals, desired conditions, or objectives, or must not foreclose the opportunity to maintain or achieve any goal, desired condition, or objective over the long term. Desired conditions, objectives, and/or goals are all expected to provide the purpose and need for most projects and activities; thus, most projects or activities would usually be designed to meet one or more of these plan components. For example, if a plan has an objective to construct X number of trails for recreation over Y years, a project to build trails would be consistent with that objective.
However, even when a project is proposed for a reason other than to meet a desired condition, objective, or goal (for example, an unexpected proposed use such as a new permit application), the project would be consistent if and only if it does not foreclose the possibility of achieving any desired conditions, objectives, and goals of the plan. As an example, a project is
This paragraph of the proposed rule also would require projects or activities to comply with applicable standards. Projects or activities would also have to be consistent with applicable guidelines, but consistency may be determined in one of two ways. The project or activity either must comply with the applicable guidelines or must be designed in a way that is as effective in carrying out the intended contribution to the applicable goals, desired conditions, or objectives; avoiding or mitigating undesirable effects; or meeting applicable legal requirements.
For example, a plan could contain a guideline designed to protect a riparian area that recommends not allowing soil-disturbing activities within 300 feet from the edge of a perennial stream. The responsible official could propose to eliminate or control invasive species of plants with prescribed burning, which would require a mechanical fireline within 200 feet of the same stream and other streams and wetlands. After site-specific examination, an interdisciplinary team might recommend that the fireline be allowed in that location, if sediment fences, slash, logs across slopes, and straw bales are used to protect water quality in the nearby stream from sediment (loose soil) in stormwater runoff. A responsible official may conclude that the project, as designed, is consistent with the guideline since its mitigation measures are as effective as the 300 foot recommendation in contributing to desired conditions for the stream system.
For the suitability plan component, the project or activity would be consistent if it occurred in an area the plan has identified as suitable for that type of project or activity, or in an area for which the plan is silent with respect to the suitability of that type of project or activity.
This section of the proposed rule would give the responsible official four options to resolve inconsistency, subject to valid existing rights, when it is determined that a proposed project or activity would be inconsistent with the plan. The project or activity may be modified so that it is consistent, or may be rejected, or terminated. Alternately, the responsible official could make a general amendment to the plan so the project or activity is consistent with the plan as amended. The responsible official could also make a project-specific amendment contemporaneously with the approval of the project or activity so that it is consistent with the plan as amended.
Project specific amendments are usually short-lived with the project, very localized to the project area, and have limited utility outside of the project activity. Project specific amendments allow appropriate action or a reasonable project to continue without unnecessary delay for a larger permanent amendment process. This provides a means to accommodate exceptions.
The Agency has experienced difficulties determining how new plan components and content in a plan apply to existing projects and activities when amending or revising plans. This section would require (with respect to projects and activities approved before the effective date of the plan, plan amendment, or plan revision) that either: (1) The plan approval document must expressly allow such projects to go forward or continue, and thus deem them consistent, or (2) in the absence of such express provision, the authorizing instrument (permit, contract, etc.) approving the use, occupancy, project, or activity must be adjusted as soon as practicable to be consistent with the plan, plan amendment, or plan revision, subject to valid existing rights.
Other types of plans may be developed for the lands or resources of the unit. These resource plans, such as travel management plans, wild and scenic river plans, etc., provide further guidance for approval of projects or activities; therefore, they would also be required to be consistent with the applicable land management plan. If such plans are not consistent, modifications of the resource plan must be made or amendments to the land management plan must be made to resolve any inconsistencies.
The proposed rule represents a significant new investment in public engagement designed to involve the public early and throughout the planning process. The Agency is making this investment in the belief that public participation throughout the planning process would result in a more informed public, better plans, and plans that are more broadly accepted by the public than in the past. This section is the companion to § 219.4, which sets forth direction for responsible officials to engage the public and provide opportunities for interested individuals, entities, and governments to participate in the planning process. In this section, the proposed rule sets forth requirements for public notification designed to ensure that information about the process reaches the public in a timely and accessible manner. This section describes when public notification is required, how it must be provided, and what must be included in each notice. The requirements in this section respond to the consensus that people want to be informed about the various stages of the planning process, with clear parameters for when and how they could get involved.
Public notification would be required to begin preparation of an assessment; begin the development of a plan proposal; propose a plan, plan amendment, or plan revision and invite comments on the proposed plan, plan amendment, or plan revision and accompanying environmental documentation; begin the objection period for a plan, plan amendment, or plan revision; and announce final approval of a plan, plan revision, or plan amendment (§ 219.16(a)). Notice would also be required if a responsible official chose to use a new planning rule to complete a plan, plan revision, or plan amendment initiated under the previous rule; and for administrative changes, changes to the monitoring program, assessment reports, and monitoring evaluation reports. Notice and public involvement in the assessment phase and development of a plan proposal are especially significant additions to the requirements for public notice included in prior planning regulations.
Discussions at several public meetings emphasized the importance of updating the way we provide notice to the public to ensure that we successfully reach a diverse array of people and communities and inform them about the process and how they could participate. Many people said that using only one outreach method would not reach all needed communities. In response, § 219.16 directs responsible officials to use contemporary tools to provide notice to the public, and, at a minimum, to post all notices on the relevant Forest Service Web site. In addition, the proposed rule continues to require traditional forms of formal notice, including the
Public notices required in this section of the proposed rule must clearly describe the action subject to notice and the nature and scope of the decisions to be made; identify the responsible official; describe when, where, and how the responsible official will provide opportunities for the public to participate in the planning process; and explain how to obtain additional information about the action being taken or about the planning process. These requirements respond to the public's desire for clarity in communications to ensure the process is understandable and accessible.
This section of the proposed rule provides that “formal notifications may be combined where appropriate.” This provision would allow flexibility for plan amendments to have a more streamlined, efficient process than new plans or plan revisions, where appropriate. This approach is in keeping with the public's desire and the Agency's need for a process that allows units to quickly and efficiently adapt to new information and changing conditions. (
The requirements as proposed in § 219.16, along with those in § 219.4, should lead to a public participation effort that provides broad access and attempts to engage and meet the unique information needs of the public interested or affected by management on each unit.
Section 219.17 of the proposed rule describes when approval of plans, plan revisions, or plan amendments would take effect and when units must begin to use the new planning regulations.
A plan, plan amendment, or plan revision would take effect 30 days after plan approval is published. The NFMA (16 U.S.C. 1604(j)) requires the 30-day delay for plans and revisions. The proposed rule would also impose this delay upon amendments to be consistent with the process for plan development and plan revision. The only exception is for project specific amendments, which would take effect at the same time as the project(s) with which they are associated.
When the final rule goes into effect, new plans and plan revisions must conform to the new planning requirements in Subpart A. There would be a 3-year transition window during which amendments may be initiated and completed using the 2000 rule or the amendments may conform to the new rule. After 3 years, all new plan amendments would conform to the new rule. This transition period for new amendments would give the responsible official the option to facilitate rapid amendments to plans developed under previous rules for a limited time, until full familiarity with the new rule develops. No transition period would be provided for new plans or plan revisions. Plan revisions are comprehensive and the new regulations should be applied as soon practicable.
For plan activity (plan development, plan revision, or plan amendment) initiated before the new rule goes into effect, the responsible official may choose whether to complete the plan using the 2000 rule, as it is in effect now, or conform to the requirements of the new rule after providing notice to the public. This would allow the responsible official to consider many factors and determine what is best for the planning process on the unit.
After it goes into effect, the new rule will supersede all previous planning rules. Units with plans developed under the 1982 rule or rule procedures would no longer be subject to the requirements of the 1982 rule, but would continue to be subject to any requirements included in their plan. Activities and projects on those units would have to meet the requirements of the plan. This paragraph in the proposed rule is needed for clarity so that all NFS units understand they are subject to the new planning rule for plan development, plan amendment, and plan revision, while still requiring NFS units to follow the plan provisions of their current plans.
If any part of this proposed rule is held invalid by a court, this section provides that the invalid part would be severed from the other parts of the rule, which would remain valid.
This section sets out and defines the special terms used in this proposed rule.
The Agency is about to ask for public comment on a proposed change to Forest Service Manual (FSM) 2020—Ecological Restoration and Resilience, which includes the definition of restoration. FSM 2020 provides foundational policy for using ecological restoration to manage National Forest System lands in a sustainable manner. The definition for restoration also appears in FSM 2020. The proposed rule definition is based on the definition in the current FSM 2020, but is not identical. The current directive may be found at
The Forest Service Directive System consists of the Forest Service Manual (FSM) and the Forest Service Handbook (FSH), which contain the Agency's policies, practices, and procedures and serve as the primary basis for the internal management and control of programs and administrative direction to Forest Service employees. The directives for all Agency programs are set out on the World Wide Web/Internet at
The Forest Service has provided an administrative review process for decisions and proposals related to land management plans since they were first produced in the 1980s, and an appeal process by which the public can challenge individual project and permit decisions made by Forest Service responsible officials since 1906. The Forest Service has a long history of providing an administrative review process that has allowed interested individuals and organizations the opportunity to have unresolved concerns considered and responded to by an independent agency official at a level above the deciding official. This process has also provided for additional internal review to ensure that Forest Service proposals and decisions comply with applicable laws, regulations, and agency policy.
Prior to the 2000 rule, the administrative review process for unit plan decisions provided an opportunity for a post-decisional appeal. In other words, at the time the plan decision was issued, the plan was generally put into effect. This scenario has often been problematic because when reviewing appeals, if a reviewing officer finds fault with a plan already in effect, the remedy can be costly to both the Forest Service and the public in terms of time and money. Such a situation can also damage public trust in the planning process. Interim direction is often put into place while the responsible official prepares further analysis and other appropriate corrections.
With the promulgation of the 2000 planning regulations, and in subsequent regulations promulgated in 2005 and 2008, the Agency moved toward a pre-decisional administrative review process called an objection process.
After a review of public comments and consideration of agency history regarding pre- or post-decision administrative appeal in this proposed rule, the objection process is proposed. This proposal is based on two primary considerations. First, a pre-decisional objection is more consistent with the collaborative nature of this proposed rule and encourages interested parties to bring specific concerns forward early in the planning process, allowing the Forest Service a chance to consider and respond to potential problems in a plan or decision before it is approved. Second, pre-decisional objections lead to a more timely and efficient process for developing plans, thus reducing waste of taxpayer and agency time and dollars spent implementing projects under plans subsequently found to be flawed.
Subpart B sets forth the requirements for the objection process in the proposed rule, explained in detail below.
This section states that the purpose of the subpart is to establish a process for pre-decisional administrative review of plans, plan amendments, and plan revisions.
This section identifies those plans, plan amendments, or plan revisions that would not be subject to the pre-decisional objection process under the proposed rule. Specifically, if no individual or organization would be eligible to file an objection based on the requirements in § 219.53(a), then the plan proposal would not be subject to objection. Plans, plan amendments, or plan revisions proposed by the Secretary of Agriculture or the Under Secretary for Natural Resources and Environment would not be subject to the objection process of this subpart because the Department's position for all Forest Service administrative review processes has been that secretarial decisions are not subject to administrative review (the Agency anticipates that plans, plan amendments, or plan revisions proposed by the Secretary or Under Secretary would be rare occurrences); and if another administrative review process is used, the process in this subpart would not apply. Section 219.59 identifies the limited circumstances in which a different administrative review process may be used.
Section 219.52 provides additional information for providing the public notice, required by section 219.16 subpart A, that would begin the objection filing period. This notice serves three particular purposes: (1) To notify parties eligible to file objections that the objection filing period is commencing; (2) to notify parties eligible to file objections and others of the availability of planning documents and how to obtain those documents; and (3) to establish a publicly and legally verifiable start date for the objection filing period.
Section 219.52 would require the Forest Service to make a special effort to ensure the public understands how the objection process in this subpart would be used for each plan, plan amendment, and plan revision. Specifically, the responsible official would be required to disclose the objection procedures by stating so during scoping under the NEPA process and in the appropriate NEPA documents. Early disclosure would help assure that those parties who may want to file objections are aware of the necessary steps to be eligible.
The proposed rule also would require the responsible official to make the public notice for beginning the objection filing period available to those who have requested the environmental documents or who are eligible to file an objection. This is intended to ensure that the necessary information reaches those who have specifically requested it and those who could have a particular interest in the start of the objection filing period by virtue of their eligibility to file an objection.
Paragraph (c) outlines the format and content of the public notice to ensure potential objectors have necessary procedural information, can find underlying documents, and understand the process, timing, and requirements for filing an objection.
This section of the rule identifies eligibility requirements for filing an objection under this subpart. This section is written in the context of § 219.4 in Subpart A, which expresses the Agency's intent to involve the public early and throughout the planning process in keeping with the collaborative nature of this proposed rule.
Paragraph (a) provides that individuals and organizations who have submitted “formal comments” related to a plan, plan amendment, or plan revision during public participation opportunities provided in planning process for that decision could file an objection. “Formal comments” are defined at § 219.63 as “written comments submitted to, or oral comments recorded by, the responsible official or his/her designee during an opportunity for public participation provided during the planning process and attributed to the individual or organization providing them.” This requirement would allow those who have engaged in the process in a substantive way to object to the plan decision. Since formal comments could be made at opportunities for public participation provided at any point in the planning process, the Agency believes it is not too high of a burden for a potential objector. The definition specifically would allow oral comments to be formally recorded in order to accommodate individuals new to the process or those who would prefer to submit their comments orally. At the same time, the requirement would include parameters for submitting formal comments to ensure the proposed rule would not inadvertently impose an unachievable burden on Forest Service officials to record every comment made, or written submission sent, outside of the offered participation opportunities. To honor the collaborative process and encourage participation in the numerous opportunities provided for public participation, this requirement would bar individuals or organizations who did not participate from using the objection process.
Paragraph (a) further would require that objections must be based on the substance of the objector's formal comments, unless the objection concerns an issue that arose after the opportunities for formal comment.
Paragraph (b) states that when an organization submits comments, eligibility to submit an objection would be conferred on that organization only, not on individual members of that organization. The Agency believes an organization is its own entity for purposes of submitting comments, and that it is appropriate to accord an organization eligibility to file objections as an organization after submitting comments. However, the Agency does not believe it is appropriate to allow individual members in that organization to file objections by virtue of membership in an organization that submitted comments. Nothing in this section would prohibit an individual member of an organization from submitting comments on his or her own behalf.
Paragraph (c) clarifies that if an objection is submitted on behalf of a number of named individuals or organizations, each individual or organization listed must meet the eligibility requirements of paragraph (a) to be considered objectors. However, as long as at least one individual or organization listed meets the eligibility requirements and the objection is not otherwise flawed, the Forest Service must accept the objection. Objections rejected because they were not filed by an eligible individual or organization must be documented in the planning record, but they would not receive a response from the reviewing officer.
Paragraph (d) states that Federal agencies may not file an objection. Other avenues, including consultations required by various environmental protection laws, are available to Federal agencies for working through concerns regarding a proposed plan, plan amendment, or plan revision. It is expected that Federal agencies will work cooperatively during the planning process.
Paragraph (e) would allow Federal employees to file objections as individuals in a manner consistent with Federal conflict of interest requirements.
This section provides information on how to file an objection. Paragraph (a) would provide for an objection to be filed with the reviewing officer in writing and would require all objections be open to public inspection during the objection process.
Paragraph (b) would provide that incorporation of documents by reference not be allowed, with specific exceptions listed. This provision would ensure the contents and substance of an objection, including all attachments, are readily understandable and available to the reviewing officer for timely completion of the objection process. Similarly, objectors must provide arguments and supporting documentation, and cannot meet the requirements of this process by attempting to incorporate by reference substantive materials and arguments. The Federal courts have taken a similar view of such procedural maneuvers;
Paragraph (c) provides a detailed list of information that must be included in an objection. The list is very similar to Department requirements in the objection regulations for hazardous fuel reduction projects authorized under the Healthy Forests Restoration Act (36 CFR Part 218), and the appeal regulations for projects implementing land management plans (36 CFR Part 215). The objection should set the stage for meaningful dialogue with the reviewing officer and responsible official. Required information would be used to focus the administrative review and written response of the reviewing officer. For example, the objection must provide the basis for a potential remedy to the objection by including how the proposed plan decision could be improved. An objector's telephone number or e-mail address would be part of the administrative record, considered public information, and available under the Freedom of Information Act.
This section sets out the proposed conditions under which the reviewing officer would not review an objection. The reviewing officer must set aside an objection without review or response on the concerns raised when any of the following apply: an objection is not filed within the objection period; the proposal is not subject to the objection procedures of this section; the objector did not meet the eligibility requirements to object (§ 219.53); there is insufficient information to review and respond; the objector has withdrawn the objection in writing; the objector's identity cannot be determined and a reasonable means of contact has not been provided; or the objection is illegible. The reviewing official must also set aside from review any issue within the objection that is not based on previously submitted substantive formal comments and which did not arise after the opportunities for formal comment. The reviewing officer must give written notice to the objector and the responsible official when an objection is set aside from review and must state the reasons for not reviewing the objection. If the objection is set aside from review for reasons of illegibility or lack of a means of contact, the reasons must be documented in the planning record.
This section describes the timeframes in the objection process, the reviewing officer's role and responsibilities, and the means of providing public notification of the objections filed. The provisions in this section are responsive to public concern that the review process be timely and efficient.
The filing period for the objection would be 30 days following publication of the required public notice. The objector would be responsible for filing the objection in a timely manner. The method to determine timeliness would be based on indicators appropriate to the method of submission. For example, objections sent via the U.S. Postal Service must be postmarked on or before the close of the last day of the objection-filing period. Some members of the public have raised the concern that this is not enough time to review the planning documentation and develop an objection. However, the Agency believes that given the emphasis this rule places on a collaborative planning process and the requirements outlined earlier for public notice, a 30-day filing period would be sufficient. Because the responsible official could not approve the plan, plan amendment, or plan revision until after the objection process, it is important to ensure that the submission, review, and resolution of, or response to, the objections occur in a timely manner. Additionally, by requesting to meet with the reviewing officer, objectors would have an opportunity to elaborate on those concerns documented in their objections.
Paragraph (e) describes the role and responsibilities of the reviewing officer. The proposed rule would provide that the reviewing officer be a line officer at the next higher administrative level above the responsible official. A number of those who provided written comment expressed concern that agency reviewing officers could lack sufficient objectivity to render a fair response to
For plan amendment objections only, the next higher-level line officer could delegate the reviewing officer authority and responsibility to a line officer under his or her chain of command at the same administrative level as the responsible official. In other words, if the responsible official for a plan amendment is a forest supervisor, the regional forester or deputy regional forester (agency directives assign deputy regional foresters line officer authority) could delegate the reviewing officer responsibilities to another forest supervisor. The Agency believes the option of making such a delegation could contribute to a more effective, and still impartial, review process; for example, in instances where a particular line officer at the same administrative level as the responsible official is more familiar with particular plan issues or is more readily available to meet with objectors. Responsibility for new plans or plan revisions could not be delegated.
Paragraph (f) would require the responsible official to publish a notice of all objections in the applicable newspaper of record and online within 10 days of the close of the objection-filing period. This requirement would allow any person or entity that may have specific interest in the outcome of an objection to participate in the objection as an “interested person,” as provided in § 219.57.
Paragraph (g) would require the reviewing officer to issue a written response to the objector(s) within 90 days. The reviewing officer could extend the 90-day time frame in the event of a large number of objection filings or so that meaningful and productive discussions to resolve issues are not cut short.
This section describes the objection resolution process. The objective of this administrative review process is to resolve as many concerns as possible prior to approval of a plan, plan amendment, or plan revision. Paragraph (a) would allow the reviewing officer or the objector to request a meeting to discuss the objection and attempt resolution. To maintain as much of a collaborative approach as possible under the circumstances of an administrative review, this section would require the reviewing officer to allow any other person who filed a request to participate in meetings to do so. Requests to participate as an interested person would have to be filed with the reviewing officer within 10 days of the publication of the notice of filed objections. The meetings would always be open to the public, but only the objectors and interested persons who filed a request to participate in the meeting could participate; others could attend the meetings but only to observe.
Paragraph (b) would provide for a written response to the objection. The reviewing officer could issue a single response to multiple objections of the same plan, plan amendment, or plan revision. Whether in individual responses or a consolidated response, the reviewing officer's response would be limited to only those concerns submitted in the objection(s). Paragraph (b) also states that the reviewing officer's response would be the final decision of the Department of Agriculture on the objection.
This section describes when a responsible official could approve a plan, plan amendment, or plan revision.
Paragraph (a) would allow a responsible official to approve a plan, plan revision, or plan amendment only after the reviewing officer has responded to all objections in writing, and § 219.57(b)(1) specifies the response need not be point-by-point.
Paragraph (c) provides that when no objection is filed on a plan, plan amendment, or plan revision within the 30-day period for filing an objection, the responsible official could approve the plan, plan amendment, or plan revision. Approval could occur on or after the 5th business day following the end of the objection filing period. The 5 business day delay/buffer is to allow sufficient time for any objections that may have been timely filed through the U.S. Postal Service (
This section would allow for the use of other administrative review processes in lieu of the objection process in certain circumstances.
Paragraph (a) would allow the use of the administrative review procedure of another Federal agency when the plan, plan amendment, or plan revision is part of a multi-Federal agency effort. This provision is proposed to minimize the confusion that could occur if multiple administrative review processes are used for a single joint proposal. It also requires that the public notice identify which administrative review procedure is to be used.
Paragraph (b) provides that the objection process in this subpart of the proposed rule would not apply when a plan amendment decision is made at the same time as a project or activity decision, and is specifically limited to that project or activity. Instead, the regulations for notice, comment, and appeal of projects at 36 CFR Part 215, or the regulations for objections to hazardous fuel reduction projects authorized by the Healthy Forests Restoration Act, at 36 CFR Part 218, would apply to the amendment as well as the project. In this type of mixed decision, the project decision is the dominant part so the administrative review process for projects is more appropriate than the objection process contained in this subpart of the proposed rule.
However, paragraph (b) also would provide that the objection process in this subpart be used for an amendment that applies not just to one project or activity, but to any future project or activity for which it is relevant, even when the amendment is approved as a part of a mixed decision with a project or activity. Because the plan amendment would apply broadly, and not just to the project, it would be subject to the pre-decisional administrative review process of this subpart, while the project part of the decision would be subject to the administrative review process of either 36 CFR Part 215 or Part 218. Corresponding provisions for administrative reviews of the mixed decisions described by these two scenarios already exist in 36 CFR Parts 215 and 218.
Paragraph (a) explains that no part of this proposed rule would restrict the Secretary's authority.
This section explains that the rule would contain information collection requirements as defined in 5 CFR Part 1320 and specifies the information that
This section defines some of the commonly used terms and phrases used in Subpart B of the proposed rule.
The Agency reviewed this proposed rule under U.S. Department of Agriculture (Department) procedures and Executive Order (E. O.) 12866 issued September 30, 1993.
The Agency has determined this proposed rule is not an economically significant rule. This proposed rule will not have an annual effect of $100 million or more on the economy nor adversely affect productivity, competition, jobs, the environment, public health or safety, nor State or local governments. This proposed rule will not interfere with an action taken or planned by another agency. Finally, this proposed rule will not alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients of such programs. However, because of the extensive interest in NFS planning and decisionmaking, this proposed rule has been designated as significant and, therefore, is subject to Office of Management and Budget review. An analysis was conducted to compare the costs and benefits of implementing the proposed rule to the baseline, which assumes planning pursuant to the 1982 rule procedures, as allowed by the transition provisions of the 2000 planning rule (36 CFR 219.35(b), 74 FR 67073 (December 18, 2009)). This analysis is posted on the World Wide Web at:
The scope of this analysis is limited to programmatic or agency procedural activities related to plan development, plan revision, and plan amendment (
The effects of the proposed rule are evaluated within the context of a planning framework consisting of a three-part learning and planning cycle: Assessment, development/revision/amendment, and monitoring. The cost-benefit analysis focuses on key activities related to this three-part planning cycle for which agency costs can be estimated under the 1982 rule procedures and the proposed rule. Differences in costs across alternatives are estimated when possible, but benefits are discussed qualitatively as potential changes in procedural or programmatic efficiency. The key activities for which costs were analyzed include: (1) Assessments (
Primary sources of data used to estimate agency costs include recent cost-benefit analyses, business evaluations, and budget justifications for planning rules issued between 2000 and 2008 and recent historical data (1996-2009) regarding regional and unit-level budget allocations and paid expenditures for planning and monitoring activities related to planning. Agency costs are initially estimated for the 1982 rule procedures and then used as a baseline from which adjustments are made, based on explicit differences in planning procedures, to estimate costs for the proposed rule. Cost projections of the proposed rule are speculative because there are challenges anticipating the process costs of revising and amending plans at this programmatic level of analysis. The Agency will not be able to determine costs until the Department issues the final rule and the Agency implements it. Annual costs are estimated separately for years during which units (with regional support) are engaged in plan revision and the years units are engaged in plan maintenance/amendment. The estimated costs are then aggregated to estimate total planning costs. Over a 15-year planning cycle, it is assumed that management units will be engaged in plan revision for 3 years under the proposed rule and 5 years under the 1982 rule procedures, implying annual plan maintenance or more frequent but shorter amendments will be occurring for the remaining 12 and 10 years respectively.
Monitoring is assumed to occur every year, but monitoring differs slightly for plan revision years compared to maintenance years. Shorter revision periods reflect the expectation that the process for revising plans will be more efficient because of procedural changes described below (
Due to the programmatic nature of the proposed action, the benefits derived from land management plans developed, revised, or amended under the different alternatives are not quantified. Instead, the benefits of the alternatives are assessed qualitatively for procedural or programmatic efficiency. Efficiency is a function of(1) the time and resources used (costs) to complete and maintain plans, and (2) the degree to which those plans are capable of providing direction for resource monitoring, management, and use/access that sustains multiple uses (including ecosystem services) in perpetuity and maintains long-term health and productivity of the land for the benefit of human communities and natural resources, giving due consideration to relative values of resources (
Results of the cost analysis indicate agency costs increase for some key activities and decrease for others under the proposed rule and alternatives. However, total annual planning costs are not projected to be substantially different between the proposed rule and the 1982 rule procedures. Estimates of potential differences in planning costs are complicated by the unknown effects of any future Forest Service directives that might be developed to support the proposed rule.
The annual average undiscounted cost to the Agency for all planning-related activities under the proposed rule ($102.5 million per year) is estimated to be $1.5 million per year lower compared to the 1982 rule procedures ($104 million per year). Assuming a 3 percent discount rate, the projected annual cost for the proposed rule is estimated to be $102 million, while the projected annual cost for the 1982 rule procedures is $103 million, implying a projected annual cost difference of only $1 million. Assuming a 7 percent discount rate for the same timeframe, the projected annual cost estimate for the proposed rule is $80 million compared to $81 million under the 1982 rule procedures.
Based on the above quantitative comparison, annual average planning costs to the Agency are projected to be similar for the proposed rule and the 1982 procedures. If the Agency implements the planning rule as proposed, it is anticipated employee training will be needed, in large part due to the proposed collaborative process and reallocation of resources across different planning related activities. It is likely the cost of training will decrease gradually over time. Therefore, during the first 15-year period, planning costs will be slightly elevated and not significantly different from the no-action alternative as units adjust to the new planning process and build collaborative capacity. In subsequent 15-year periods, planning costs are likely to decrease as the new process becomes more established. Costs in subsequent planning cycles are expected to be lower than those estimated in this analysis for the proposed rule.
The cost and benefit analysis assumed eight management units will start plan revision annually. Therefore, approximately 120 management units will at least initiate plan revision over the next 15 years (
The numerous public meetings, forums, and roundtable discussions revealed growing concern about a variety of risks and stressors (
Under the proposed rule, costs are projected to be redirected toward collaboration, assessment, and monitoring activities and away from development and analysis of alternatives compared to the 1982 rule procedures. Costs are also redirected more toward maintenance or plan amendments under the proposed rule, due in part to expectations that less time will be needed to complete plan revisions. These effects are projected to occur, in part, because of broader support and resolution of issues at earlier stages of plan revision, achieved through collaboration as well as other procedural changes.
The reallocation of efforts and costs across different phases of planning, and across key planning activities under the proposed rule is expected to improve overall planning efficiency. Shifts in emphasis and resources under the proposed rule are projected to improve the currency, reliability, and legitimacy of plans to serve as a guide for: (1) Reducing uncertainty by identifying and gathering new information about conditions, trends, risks, stressors, contingencies, vulnerabilities, values/needs, contributions, and management constraints; (2) integrating and assessing ecological, social, and economic information to determine if outputs and outcomes related to unit contributions to ecological, social, and economic conditions indicate a need to change the plan; and (3) responding to the need for change in management activities, projects, or revisions and amendments to plan components. Potential increases and/or reallocation of costs associated with assessment, analysis, and monitoring requirements for elements such as diversity and sustainability are expected to provide clearer direction for subsequent project planning. It is recognized project-level costs are not included in the analysis of land management planning costs. Details about the potential effects of specific procedural changes on agency costs and planning efficiency are described below, by activity category.
Assessments would be conducted at landscape levels and at a geographic scale based on ecological, economic, or social factors rather than a strict adherence to administrative boundaries. This broader approach would enhance capacity to incorporate information about conditions outside of NFS boundaries.
Risks and vulnerabilities to ecosystem elements and functions would be considered in assessments thereby encouraging consideration of the effects of long-term environmental or social/economic variability, events, and trends on future outputs, ecosystem services, and outcomes.
Improved analysis and decisionmaking efficiency during latter stages of planning due to increases in collaborative efforts during early phases;
Improved capacity to reduce uncertainty by gathering, verifying, and integrating information from a variety of sources, including tribal or other forms of knowledge and land ethics, within and beyond unit boundaries;
Potential to offset or reduce agency monitoring costs as a result of collaboration during monitoring plan development and monitoring itself;
Improved capacity for identifying and integrating ecological, social, and economic indicators for determining the need to change the plan during assessments;
Reduced need for large numbers of plan alternatives as well as time needed to complete plan revisions as a consequence of broader support and resolution of issues achieved through collaboration during early phases of proposed plan development;
Improved perceptions regarding the legitimacy of plans and the planning process, as well as reduced agency costs associated with resolving objections (or conflict) by increasing transparency, developing awareness of the values and expected behavior of others, and seeking greater consensus about values, needs, tradeoffs, and outcomes during earlier stages of planning; and,
Improved expectations about building unit (and regional) capacity to overcome existing barriers to collaboration (
The following elements associated with the proposed rule are expected to increase planning efficiency by facilitating plan revisions and amendments, expanding capacity for adaptive management, and improving guidance for responding to diverse determinations of a need to change the plan:
The adoption of a coarse-filter/fine-filter approach for addressing species viability and diversity within plan components, combined with the recognition of land management and resource limits which constrain levels of achievable viability and diversity, is expected to make management units better able to develop plans that provide feasible or realistic direction for responding to species and ecosystem sustainability and recovery needs while meeting requirements for plant and animal diversity;
A greater emphasis on ecosystem sustainability and resiliency in plan components is expected to increase the ability of management units to respond efficiently to new information regarding environmental, social, and economic risks and stressors, including climate change and market trends, that might threaten the long-term productivity and sustainability of forest resources and outputs;
Refocusing the use of the term “restoration” to focus on recovery of resiliency and ecosystem functions (instead of historical reference points) offers greater flexibility to develop plan components (
Greater emphasis placed on identifying each unit's role in providing ecosystem services within a broader landscape or region should facilitate the design of management responses that recognize the marginal effects or contributions of ecological, social, or economic conditions originating from outside of the traditional unit study area boundaries;
More frequent amendments expected under the proposed rule leading to more current plans and more focused descriptions of the need to change the plan to guide future subsequent plan revisions;
Fewer “minimum management requirements,” with flexibility to adopt plan components to provide similar levels of protection afforded by minimum management requirements under 1982 rule procedures; and,
Less prescriptive descriptions of timber harvests, sale schedule, and management practices under the proposed rule (compared to the 1982 rule procedures) may provide greater flexibility for units to develop more adaptive plans capable of responding to uncertain vegetation management and restoration needs.
Monitoring requirements, such as coordination of broad-scale monitoring, as well as monitoring of “focal species” and select ecological conditions as measures for diversity, are expected to contribute to overall cost efficiency. Changes in guidance and requirements for monitoring under the proposed rule are expected to increase planning effectiveness by improving capacity to gather information and reduce uncertainty for a number of integrated ecological, social, and economic conditions, trends, risks, stressors, constraints, and values within and beyond unit boundaries. The following is a list of the changes.
Monitoring under the proposed rule focuses to a greater extent on ecosystems, habitat diversity, and small numbers of focal species, with the intent that tracking overall species diversity and habitat sustainability will be more cost effective and reflective of unit-specific capacities compared to the 1982 rule procedures involving management indicator species (MIS).
Two-level monitoring is intended to create a more systematic and unified monitoring approach to detect effects of management within unit boundaries as well as track risks, stressors, and conditions beyond unit boundaries that affect, or are affected by, unit conditions and actions.
Emphasis on coordination between unit- and broad-scale monitoring helps ensure information is complementary, is gathered at scales appropriate to monitoring questions, reduces redundancy, and improves cost-effectiveness.
Due to the programmatic nature of this rule, it is not feasible to assess distributional impacts (
The proposed rule is more prescriptive about considering and facilitating restoration of damaged resources as well as improving resource capacity to withstand environmental risks and stressors (
The proposed rule has also been considered in light of E.O. 13272 regarding proper consideration of small entities and the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), which amended the Regulatory Flexibility Act (5 U.S.C. 601
This proposed rule has been reviewed under Executive Order 13211 issued May 18, 2001 (E.O. 13211), “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.” It has been determined that this proposed rule does not constitute a significant energy action as defined in E.O. 13211. This proposed rule would guide the development, amendment, and revision of NFS land management plans. These plans provide the guidance for making future project or activity resource management decisions. As such, these plans would address access requirements associated with energy exploration and development within the framework of multiple-use sustained-yield management of the surface resources of the NFS lands as required by § 219.10. These land management plans may identify major rights-of-way corridors for utility transmission lines, pipelines,
This proposed rule establishes the administrative procedures to guide development, amendment, and revision of NFS land management plans. The Agency has prepared a draft programmatic environmental impact statement to analyze possible environmental effects of the proposed rule, present several alternatives to the proposed rule, and disclose the potential environmental impacts of those alternatives. The draft programmatic environmental impact statement is available on the Web at
The proposed rule would require plan development, amendment, or revision to follow NEPA procedures. The rule requires an EIS for plan development and plan revisions. The rule also requires that plan amendments comply with Forest Service NEPA procedures. The appropriate NEPA documentation for an amendment may be an EIS, an EA, or a CE, depending upon the scope and scale of the amendment and its likely effects.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The information required by subpart B of this rule is needed for an objector to explain the nature of the objection being made to a proposed land management plan, plan amendment, or plan revision. This proposed rule retains the objection process established in the CFR 218 objection regulation and does not require additional information be provided from the public. This rule does instead give direction that is more detailed to both the public and Forest Service personnel on the timelines, requirements, and procedures of the objection process.
The Agency has considered this proposed rule under the requirements of Executive Order 13132 issued August 4, 1999 (E.O. 13132), “Federalism.” The Agency has made an assessment that the proposed rule conforms with the Federalism principles set out in this Executive Order; would not impose any compliance costs on the States; and would not have substantial direct effects on the States, on the relationship between the national government and the States, nor on the distribution of power and responsibilities among the various levels of government. Therefore, the Agency concludes that this proposed rule does not have Federalism implications. Moreover, § 219.4(a)(6) of this proposed rule shows sensitivity to Federalism concerns by requiring the responsible official provide opportunities for the participation of State and local governments and Indian Tribes in the planning process. In addition, § 219.4(b) requires the responsible official to coordinate planning with State and local governments and Indian Tribes.
In the spirit of E.O. 13132, the Agency provided many opportunities for State and local officials, including their national representatives, to share their ideas and concerns in developing the proposed regulation. The Forest Service made the December 18, 2009, NOI for the proposed planning rule available for comment and asked the public, including State and local officials, for feedback on a set of eight principles that could guide future land management planning. In addition, Forest Service regional office staff invited State and local government officials to participate in regional public roundtable meetings that occurred in 34 locations throughout the country, and nearly all of these meetings had representatives from county, city, and/or State governments present. At the request of State and county officials, the Rocky Mountain Region held a meeting with Wyoming State and county officials on April 14, 2010, in Cheyenne, WY; the Pacific Southwest Region held a meeting with California County officials on April 30, 2010.
Agency representatives also contacted the National Association of Counties, the U.S. Conference of Mayors, the Western Governors Association, the National Association of State Foresters, the National Conference of State Historic Preservation Officers and other State and local government associations to encourage them to attend the four national roundtables held during development of the proposed regulation. Attendance at the national roundtables included both State and county government officials and representatives from national associations such as the National Association of Counties and the National Association of County Planners. Agency officials also met with the Association of State Fish and Wildlife Agencies on May 26, 2010, to obtain further input on the planning rule from the perspectives of State agencies.
Based on the input received throughout all these meetings, the Agency determined that additional consultation was not needed with State and local governments for the development of this proposed rule. State and local governments are encouraged to continue to comment on this proposed rule, in the course of this rulemaking process.
On September 23, 2010, the Deputy Chief for the National Forest System sent letters inviting more than 600 federally recognized Tribes and Alaska Native Corporations to begin consultation on the proposed planning rule. The Forest Service will continue to conduct government-to-government consultation on the planning rule until the final rule is published. The Forest Service considers tribal consultation as an ongoing, iterative process that encompasses development of the proposed rule through the issuance of the final rule.
The Agency held 16 consultation meetings across the country in November and December 2010. During these meetings, Forest Service leaders met with tribal and Alaska Native Corporation leaders, or their designees, to discuss the tribal consultation paper, which described how the proposed rule addressed concerns Tribes had raised during the collaborative sessions held earlier in the year. In addition, Forest Service leaders have been meeting one-on-one with tribal leaders that request consultation in this manner. These consultation meetings have strengthened the government-to-government relationship with the Tribes as well as improved the proposed rule.
The Agency incorporated the input received through consultation into the development of this proposed rule. All comments received up through
Since the NOI was issued in December 2009, the Agency has also engaged the Tribes in the planning rule development process through collaborative efforts designed to complement the government-to-government consultation process. The Agency sent a letter to all federally recognized Tribes on December 18, 2009, encouraging them to submit comments on the NOI and inviting them to participate in national and regional roundtable meetings to share with the Agency what they want in the planning rule. The letter stated that consultation typically begins later in the rule development process, but also provided the option for Tribes to begin consultation sooner if they desired. While most Tribes elected to wait to consult until later in the rule development process, some Tribes began consultation through the local responsible official prior to the September 23, 2010, letter. Many tribal comments were also received as part of the public record on the NOI. The Agency analyzed these comments separately from the general public comments, published a report about the comments, and posted the report on the planning rule Web site. Additionally, many Tribes submitted letters as part of the collaborative process. The content of these letters have been considered and incorporated into the rule development process.
The Agency held two national tribal roundtable conference calls to provide additional opportunities for Tribes and tribal associations to comment on the development of the proposed planning rule. More than 45 Tribes and tribal associations participated in the First National Tribal Roundtable on May 3, 2010, and more than 35 Tribes and tribal associations participated in the Second National Tribal Roundtable on August 5, 2010. Transcripts and summaries of these meetings are available on the planning rule Web site.
Several Forest Service regional offices held specific in-person tribal roundtables to discuss the planning rule. The Southwestern Region held tribal roundtables in Pojoaque, NM; Albuquerque, NM; Phoenix, AZ and Flagstaff, AZ. The Pacific Southwest Region held tribal roundtables in Bayside and Clovis, CA. Transcripts and summaries of these meetings are available on the planning rule Web site. The Eastern and Southern Regions of the National Forest System also invited Tribes to attend separate tribal meetings in association with the regional roundtable being held in those regions, however, no Tribes attended.
To date, the Agency has heard from tribal leaders that the rule should clearly state how the special rights and interests of Tribes would be provided for in the planning process and show how Tribes will be engaged early throughout the planning process. They emphasize the obligation the Forest Service has to Tribes to fulfill treaty obligations and trust responsibilities, protect and honor reserved rights, and fully recognize the unique government-to-government relationship that exists between the federal government and Tribes. Tribal leaders also state that the role of science in the planning process must account for traditional tribal knowledge. In response to these concerns, the proposed rule states that plans and the planning process would not affect treaty rights or valid existing rights, and that plans must comply with all applicable laws and regulations; the responsible official must offer opportunities for Tribes to participate in collaborative plan development, along with government-to-government consultation; and the responsible official shall request information from Tribes about native knowledge, including information about land ethics, cultural issues, and sacred and culturally significant sites during the planning process.
Language has also been added to the proposed rule at § 219.4(a)(8) to encourage federally recognized Tribes to seek cooperating Agency status. This provides an additional opportunity for Tribes to be engaged in the planning process and provides further avenues for Tribes to provide input during the planning process. To address tribal concerns regarding statutes that require consultation with federally recognized Indian Tribes and Alaska Native Corporations, language at § 219.4(a)(5) specifies that the responsible official shall provide the opportunity to undertake consultation with federally recognized Indian Tribes and Alaska Native Corporations in accordance with Executive Order 13175 of November 6, 2000. Alaska Native Corporations also commented that they wanted their planning efforts to be included under requirements for coordination with other planning efforts. At § 219.4(b)(2), for plan development or revision, the responsible official shall review the planning and land use policies of federally recognized Indian Tribes, other Federal agencies, and State and local governments. The results of the review would be displayed in the environmental impact statement for the plan.
Tribal leaders stated that they want to see non-federally recognized Tribes and groups included in the consultation or planning process, as well as the involvement of youth. Non-federally recognized groups and Tribes would be able to participate in the planning process under the public requirements in § 219.4. Per § 219.4(a)(3), responsible officials shall encourage participation by youth, as well as low-income and minority populations.
Tribes place great emphasis on protection of water resources and want to see the planning rule include stipulations for water protection. Water resources are addressed throughout this proposed rule, including specifically in § 219.7 New plan development or plan revision, § 219.8 Sustainability, § 219.9 Diversity of Plant and Animal Communities, and § 219.10 Multiple Uses. Tribes support a management approach that moves away from monoculture management and promotes sustainable and diverse populations of plants and animals. Section 219.9 of the proposed rule requires land management plans to contain components to maintain or restore the structure, function, composition, and connectivity of healthy and resilient terrestrial and aquatic ecosystems in the plan area to maintain the diversity of native species.
Many Tribes expressed concerns regarding the Agency's definition of native knowledge. To address these concerns, the definition of native knowledge in § 219.19 has been expanded based on the feedback that we received during consultation. The new definition acknowledges that native knowledge is a way of knowing or understanding the world derived from multiple generations of indigenous peoples' interactions, observations, and experiences with their ecological systems, and that it is also place-based and culture-based knowledge in which people learn to live in and adapt to their own environment through interactions, observations, and experiences with their ecological system.
The Agency also received comments from tribal leaders related to the protection of cultural resources. Under § 219.10, the plan must contain plan components for a new plan or plan revision that provides for protection of cultural and historic resources and management of areas of tribal importance.
Many Tribes have a variety of concerns regarding social, economic, and ecological sustainability, and suggest that the Agency specifically
During the consultation meetings, the Agency heard from tribal leaders that confidentiality is a big concern. In order to address these concerns and explicitly address confidentiality, § 219.1(f) states that the responsible official shall comply with Section 8106 of the Food, Conservation, and Energy Act of 2008, Executive Order 13007 of May 24, 1996, Executive Order 13175 of November 6, 2000, laws and other requirements with respect to disclosing or withholding under the Freedom of Information Act certain information regarding reburial sites or other information that is culturally sensitive to Indian Tribe or Tribes.
The Agency has heard from tribal leaders that they want to see sacred sites protected. The proposed rule requires that responsible officials request information from Tribes about sacred sites, and provides for protection of cultural and historic resources and management of areas of tribal importance. In addition, a separate initiative by the USDA Office of Tribal Relations and the Forest Service is conducting a policy review concerning sacred sites and is consulting with Tribes during their effort. The Agency has informed Tribes of this separate initiative and how they can participate during the consultation meetings. Information that the Agency received during the proposed planning rule consultation process regarding sacred sites has been shared with the USDA/Forest Service initiative.
The Forest Service received many other comments during the tribal consultation meetings. A number of these comments were regarding concerns that are outside of the scope of the national planning rule or that will be addressed at the local level during the development of land management plans. Tribes will receive responses to these comments via separate documents.
Pursuant to Executive Order 13175 of November 6, 2000, “Consultation and Coordination with Indian Tribal Governments,” the Agency has assessed the impact of this proposed rule on Indian tribal governments and has determined that the proposed rule does not significantly or uniquely affect communities of Indian tribal governments. The proposed rule deals with the administrative procedures to guide the development, amendment, and revision of NFS land management plans and, as such, has no direct effect on the occupancy and use of NFS land.
The Agency has also determined that this proposed rule does not impose substantial direct compliance costs on Indian tribal governments. This proposed rule does not mandate tribal participation in NFS planning. Rather, the proposed rule imposes an obligation on Forest Service officials to reach out early to provide Tribes an opportunity to consult and to work cooperatively with them throughout the planning process.
This proposed rule has been analyzed in accordance with the principles and criteria contained in Executive Order 12630 issued March 15, 1988, and it has been determined that the proposed rule does not pose the risk of a taking of private property.
This proposed rule has been reviewed under Executive Order 12988, “Civil Justice Reform.” The Agency has not identified any State or local laws or regulations that are in conflict with this regulation or that would impede full implementation of this rule. Nevertheless, in the event that such conflicts were to be identified, the proposed rule, if implemented, would preempt the State or local laws or regulations found to be in conflict. However, in that case, (1) no retroactive effect would be given to this proposed rule; and (2) the Department would not require the use of administrative proceedings before parties could file suit in court challenging its provisions.
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538), the Agency has assessed the effects of this proposed rule on State, local, and tribal governments and the private sector. This proposed rule does not compel the expenditure of $100 million or more by any State, local, or tribal governments or anyone in the private sector. Therefore, a statement under section 202 of the Act is not required.
The United States Department of Agriculture, Forest Service, considered impacts of the proposed rule to civil rights and/or environmental justice (pursuant to Executive Order 12898 (59 FR 7629, February 16, 1994)). If implemented as proposed, with collaborative outreach, public engagement and using NEPA procedures to document effects, this analysis concludes that no adverse civil rights or environmental justice impacts from the proposed planning rule are anticipated to the delivery of benefits or other program outcomes on a national level for any under-represented population or to other U.S. populations or communities from the adoption of the proposed planning rule.
While national level impacts are not expected to be disproportionate, yet-to-be-identified adverse impacts may be possible on a regional or local level at the unit planning level. Differences in national level effects and regional/local level effects are the result of uneven distribution of minorities, low-income populations, and variations in regional, cultural, or traditional use, and differences in local access to resources. Impacts on the national forest level will be further examined at the local level, including NEPA analysis for plan development, plan revision, or plan amendment and site-specific projects.
The collaboration required by the proposed rule has significant potential to reach and involve diverse segments of the population that historically have not played a large role in NFS planning and management. Section 219.4(a) requires that when developing opportunities for public participation, the responsible official shall take into account the discrete and diverse roles, jurisdictions, responsibilities, and skills of interested and affected parties as well as the accessibility of the process, opportunities, and information. The responsible official will be proactive and use contemporary tools, such as the internet, to engage the public, and share information in an open way with interested parties.
The proposed rule includes provisions for filing an objection prior to the final decision if the objector has filed a formal comment related to a new plan, plan revision, or plan amendment. In the past, formal comments were required to be in writing and submitted during the formal comment period when developing land management plans. The proposed rule expands the definition of a formal comment to
If implemented as proposed, there are no anticipated adverse or disproportionate impacts to underserved, protected groups, low income, or socially disadvantaged communities. The proposed rule, including outreach and collaboration, and the requirement for NEPA analysis are designed to avoid adverse or disproportionate effects; therefore, mitigating measures are not necessary or appropriate for adopting or implementing the planning rule. Requirements of § 219.4 to consider accessibility, and encourage participation by youth, low-income populations, and minority populations may improve environmental justice outcomes. Local site-specific mitigation may occur as NFS projects and activities are planned and executed consistent with Forest Service and USDA policy.
Administrative practice and procedure, Environmental impact statements, Indians, Intergovernmental relations, National forests, Reporting and recordkeeping requirements, Science and technology.
Therefore, for the reasons set forth in the preamble, the Forest Service proposes to revise part 219 of Title 36 of the Code of Federal Regulations to read as follows:
5 U.S.C. 301; 16 U.S.C. 1604, 1613.
(a) This subpart sets out the planning requirements for developing, amending, and revising land management plans (also referred to as plans) for the National Forest System (NFS), as required by the Forest and Rangeland Renewable Resources Planning Act of 1974, as amended by the National Forest Management Act of 1976 (16 U.S.C. 1600
(b) Consistent with the Multiple-Use Sustained-Yield Act of 1960 (16 U.S.C. 528-531) (MUSYA), the Forest Service manages the NFS to sustain the multiple uses, including ecosystem services, of its renewable resources in perpetuity while maintaining the long-term health and productivity of the land. Resources are managed through a combination of approaches and concepts for the benefit of human communities and natural resources. Land management plans guide sustainable, integrated resource management of the resources within the plan area in the context of the broader landscape, giving due consideration to the relative values of the various resources in particular areas.
(c) The objective of this part is to guide the collaborative and science-based development, amendment, and revision of land management plans that promote healthy, resilient, diverse, and productive national forests and grasslands. Plans will guide management of NFS lands so that they are ecologically sustainable and contribute to social and economic sustainability, with resilient ecosystems and watersheds, diverse plant and animal communities, and the capacity to provide people and communities with a range of social, economic, and ecological benefits for the present and into the future, including clean water; habitat for fish, wildlife, and plant communities; and opportunities for recreational, spiritual, educational, and cultural sustenance.
(d) The Chief of the Forest Service must establish planning procedures for this part on plan development, plan amendment, or plan revision in the Forest Service Directive System in Forest Service Manual 1920—Land Management Planning and in Forest Service Handbook 1909.12—Land Management Planning Handbook.
(e) This part does not affect treaty rights or valid existing rights established by statute or legal instruments.
(f) During the planning process, the responsible official shall comply with Section 8106 of the Food, Conservation, and Energy Act of 2008 (25 U.S.C. 3056), Executive Order 13007 of May 24, 1996, Executive Order 13175 of November 6, 2000, laws, and other requirements with respect to disclosing or withholding under the Freedom of Information Act (5 U.S.C. 552) certain information regarding reburial sites or other information that is culturally sensitive to an Indian Tribe or Tribes.
(g) Plans must comply with all applicable laws and regulations, including NFMA, MUSYA, the Clean Air Act, the Clean Water Act, the Wilderness Act, and the Endangered Species Act.
Forest Service planning occurs at different organizational levels and geographic scales. Planning occurs at three levels—national strategic planning, NFS unit planning, and project or activity planning.
(a)
(b)
(2) A plan does not authorize projects or activities or commit the Forest Service to take action. However, a plan may constrain the Agency from authorizing or carrying out actions, and projects and activities must be consistent with the plan (§ 219.15). A plan does not regulate uses by the public, but a project or activity decision that regulates a use by the public under Title 36, Code of Federal Regulations, Part 261—Prohibitions, Subpart B—Prohibitions in Areas Designated by Order, may be made contemporaneously with the approval of a plan, plan amendment, or plan revision. Plans should not repeat laws, regulations, or program management policies, practices, and procedures from the Forest Service Directive System.
(3) The supervisor of the national forest, grassland, prairie, or other comparable administrative unit is the responsible official for development and approval of a plan, plan amendment, or plan revision for lands under the responsibility of the supervisor, unless a regional forester, the Chief, the Under Secretary, or the Secretary acts as the responsible official. Two or more responsible officials may undertake joint planning over lands under their respective jurisdictions.
(4) A plan for a unit that contains an experimental area may not be approved without the concurrence of the appropriate research station director with respect to the direction applicable to that area, and a plan amendment applicable to an experimental area may not be approved without the concurrence of the appropriate research station director.
(c)
The responsible official shall take into account the best available scientific information throughout the planning process identified in this subpart. In doing so, the responsible official shall determine what information is the most accurate, reliable, and relevant to a particular decision or action. The responsible official shall document this consideration in every assessment report (§ 219.6), plan decision document (§ 219.14), and monitoring evaluation report (§ 219.12). Such documentation must:
(a) Identify sources of data, peer reviewed articles, scientific assessments, or other scientific information relevant to the issues being considered;
(b) Describe how the social, economic, and ecological sciences were identified and appropriately interpreted and applied; and
(c) For the plan decision document, describe how scientific information was determined to be the most accurate, reliable, and relevant information available and how scientific findings or conclusions informed or were used to develop plan components and other content in the plan.
(a)
(1)
(2)
(3
(4)
(5)
(6)
(7)
(8)
(b)
(2) For plan development or revision, the responsible official shall review the planning and land use policies of federally recognized Indian Tribes, Alaska Native Corporations, other Federal agencies, and State and local governments, where relevant to the plan area. The results of this review shall be displayed in the environmental impact statement for the plan (40 CFR 1502.16(c), 1506.2). The review shall include consideration of:
(i) The objectives of federally recognized Indian Tribes, Alaska Native Corporations, other Federal agencies, and State and local governments, as expressed in their plans and policies;
(ii) The compatibility and interrelated impacts of these plans and policies;
(iii) Opportunities for the plan to address the impacts identified or contribute to joint objectives; and
(iv) Opportunities to resolve or reduce conflicts, within the context of achieving the Forest Service desired conditions or objectives.
(3) Nothing in this section should be read to indicate that the responsible official will seek to direct or control management of lands outside of the planning area, nor will the responsible official conform management to meet non-Forest Service objectives or policies.
(a) Planning for a national forest, grassland, prairie, or other comparable administrative unit of the NFS is an iterative process that includes assessment (§ 219.6); developing, amending, or revising a plan (§§ 219.7 and 219.13); and monitoring (§ 219.12). These three phases of the framework are complementary and may overlap. The intent of this framework is to create a responsive and agile planning process that informs integrated resource management and allows the Forest Service to adapt to changing conditions, including climate change, and improve management based on new information and monitoring.
(1)
(2)
(i) The process for developing or revising a plan includes: assessment, developing a proposed plan, considering the environmental effects of the proposal, providing an opportunity to comment on the proposed plan, providing an opportunity to object before the proposal is approved, and, finally, approving the plan or plan revision. A new plan or plan revision requires preparation of an environmental impact statement.
(ii) The process for amending a plan includes: identifying a need to change the plan, developing a proposed amendment, considering the environmental effects of the proposal, providing an opportunity to comment on the proposed amendment, providing an opportunity to object before the proposal is approved, and, finally, approving the plan amendment. The appropriate NEPA documentation for an amendment may be an environmental impact statement (EIS), an environmental assessment (EA), or a categorical exclusion (CE), depending upon the scope and scale of the amendment and its likely effects.
(3)
(b)
Assessments may range from narrow in scope to comprehensive, depending on the issue or set of issues to be evaluated, and should consider relevant ecological, economic, and social conditions, trends, and sustainability within the context of the broader landscape. The responsible official has the discretion to determine the scope, scale, and timing of an assessment, subject to the requirements of this section.
(a)
(1) Notify and encourage the public and appropriate Federal agencies, States, local governments, other entities, and scientists to participate in the assessment process (§§ 219.4 and 219.16).
(2) Notify and encourage potentially interested or affected federally recognized Indian Tribes and Alaska Native Corporations to participate in the assessment process (§§ 219.4 and 219.16).
(3) Coordinate with the regional forester, Agency staff from State and Private Forestry and Research and Development, and other governmental and non-governmental partners to consolidate existing information and leverage resources for additional information needs.
(4) Document the assessment in a report or set of reports available to the public. Document in the report(s) how the relevant best available scientific information was taken into account (§ 219.3), and include the report(s) in the planning record (§ 219.14).
(5) Identify in the report how a new plan should be proposed, or identify a potential need to change an existing plan, based on the assessment.
(b)
(1) Identify and evaluate information needed to understand and assess existing and potential future conditions and stressors in order to inform and develop required plan components and other content in the plan (§ 219.7), including plan components for sustainability (§ 219.8), diversity of plant and animal communities (§ 219.9), multiple uses (§ 219.10), and timber requirements based on NFMA (§ 219.11).
(2) Identify and consider relevant information contained in governmental or non-governmental assessments, plans, monitoring evaluation reports, and studies, including relevant neighboring land management plans. Such documents may include State forest assessments and strategies, the Resources Planning Act assessment, ecoregional assessments, non-governmental reports, State comprehensive outdoor recreation plans, community wildfire protection plans, and State wildlife action plans. Relevant private information will be considered if voluntarily provided.
(3) Identify the distinctive roles and contributions of the unit within the context of the broader landscape, considering the roles of the unit in providing multiple uses, including ecosystem services, from the NFS lands to the local area, region, and Nation. The unit's distinctive roles and contributions within the broader landscape are those for which the unit is best suited, considering the Agency mission, unique capabilities, and the resources and management of other lands in the vicinity.
(4) Identify potential monitoring questions or information needs to inform the development or modification of the unit's monitoring program.
(c)
(2) When a plan amendment is made together with, and only applies to, a project or activity decision, the analysis prepared for the project or activity may serve as the documented need to change the plan.
(a)
(b)
(c)
(2) In developing a proposed new plan or proposed plan revision, the responsible official shall:
(i) Review relevant information from the assessment phase.
(ii) Identify the presence and consider the importance of various physical, biological, social, and cultural resources on the unit, with respect to the requirements for plan components of §§ 219.8 through 219.11.
(iii) Consider conditions and trends and stressors, with respect to the requirements for plan components of §§ 219.8 through 219.11.
(iv) Identify potential wilderness areas and consider whether to recommend any such areas for wilderness designation.
(v) Identify the eligibility of rivers for inclusion in the National Wild and Scenic Rivers System, unless a systematic inventory has been previously completed and documented and there are no changed circumstances that warrant additional review.
(vi) Identify the suitability of areas for the appropriate integration of resource management and uses, with respect to the requirements for plan components of §§ 219.8 through 219.11, including identifying lands which are not suitable for timber production (§ 219.11).
(vii) Identify the quantity of timber that can be removed from the plan area (§ 219.11(d)(4)).
(viii) Identify questions and indicators for the unit monitoring program (§ 219.12).
(ix) Identify potential other content in the plan (paragraph (e) of this section).
(d)
(1)
(i)
(ii)
(iii)
(iv)
(v)
(2)
(3)
(e)
(i) Identify watershed(s) that are a priority for maintenance or restoration;
(ii) Describe the unit's distinctive roles and contributions within the broader landscape (§ 219.6(b)(3));
(iii) Include the monitoring program required by § 219.12; and
(iv) Contain information reflecting proposed and possible actions that may occur on the unit during the life of the plan including the planned timber sale program; the expected timber harvest levels, as required by NFMA (16 U.S.C. 1604(f)(2)); and the proportion of probable methods of forest vegetation management practices expected to be used. Such information is not a commitment to take any action and is not a “proposal” as defined by the Council on Environmental Quality regulations for implementing NEPA (40 CFR 1508.23, 42 U.S.C. 4322(2)(C)).
(2)
Within Forest Service authority and consistent with the inherent capability of the plan area, the plan must provide for social, economic, and ecological sustainability, as follows:
(a)
(i) Landscape-scale integration of terrestrial and aquatic ecosystems;
(ii) Potential system drivers, stressors, and disturbance regimes, including climate change; how they might affect ecosystem and watershed health and resilience; and the ability of those systems on the unit to adapt to change;
(iii) Air quality; and
(iv) Wildland fire and opportunities to restore fire adapted ecosystems.
(2)
(i) Aquatic elements, such as lakes, streams, wetlands, stream banks, and shorelines;
(ii) Terrestrial elements, such as forest stands, grasslands, meadows, and other habitat types;
(iii) Rare aquatic and terrestrial plant and animal communities, consistent with § 219.9;
(iv) Public water supplies, sole source aquifers, source water protection areas, groundwater, and other bodies of water (including guidance to prevent or mitigate detrimental changes in quantity, quality, and availability, including temperature changes, blockages of water courses, and deposits of sediments); and
(v) Soils and soil productivity (including guidance to reduce soil erosion and sedimentation).
(3)
(b)
(1) Social, cultural, and economic conditions relevant to the area influenced by the plan and the distinctive roles and contributions of the unit within the broader landscape;
(2) Sustainable recreational opportunities and uses;
(3) Multiple uses, including ecosystem services, that contribute to local, regional, and national economies in a sustainable manner; and
(4) Cultural and historic resources and uses.
Within Forest Service authority and consistent with the inherent capability of the plan area, the plan must include plan components to maintain the diversity of plant and animal communities, as follows:
(a)
(b)
(1) Contribute to the recovery of threatened and endangered species;
(2) Conserve candidate species; and
(3) Maintain viable populations of species of conservation concern within the plan area. Where it is beyond the authority of the Forest Service or the inherent capability of the plan area to do so, the plan components must provide for the maintenance or restoration of ecological conditions to contribute to the extent practicable to maintaining a viable population of a species within its range. When developing such plan components, the responsible official shall coordinate to the extent practicable with other Federal, State, tribal, and private land managers having management authority over lands where the population exists.
(c)
In meeting the requirements of §§ 219.8 and 219.9, and within Forest Service authority, the capability of the plan area and the fiscal capability of the unit, the plan must provide for multiple uses, including ecosystem services, outdoor recreation, range, timber, watershed, wildlife and fish, as follows:
(a)
(1) Aesthetic values, air quality, cultural and heritage resources, ecosystem services, fish and wildlife species, forage, geologic features, grazing and rangelands, habitat and habitat connectivity, recreational values and settings, riparian areas, scenery, soil, surface and subsurface water quality, timber, trails, vegetation, viewsheds, wilderness, and other relevant resources;
(2) Renewable and nonrenewable energy and mineral resources;
(3) Sustainable management of infrastructure, such as recreational facilities and transportation and utility corridors;
(4) Opportunities to coordinate with neighboring landowners to link open spaces and take into account joint management objectives where feasible and appropriate;
(5) Habitat conditions, subject to the requirements of § 219.9, for wildlife, fish, and plants commonly enjoyed and used by the public, such as species that are hunted, fished, trapped, gathered, observed, or needed for subsistence;
(6) The landscape-scale context for management as identified in the assessment;
(7) Land ownership and access patterns relative to the plan area;
(8) Reasonably foreseeable risks to ecological, social, and economic sustainability; and
(9) Potential impacts of climate and other system drivers, stressors and disturbance regimes, such as wildland fire, invasive species, and human-induced stressors, on the unit's resources (§ 219.8).
(b)
(i) Sustainable recreation, considering opportunities and access for a range of uses. The plan should identify recreational settings and desired conditions for scenic landscape character.
(ii) Protection of cultural and historic resources;
(iii) Management of areas of tribal importance;
(iv) Protection of wilderness areas as well as the protection of recommended wilderness areas to protect the ecologic and social values and character for which they might be added to the National Wilderness System;
(v) Protection of wild and scenic rivers as well as the protection of those rivers eligible for inclusion in the national wild and scenic river system to protect the values for which they might be included in the system until their suitability is determined; and
(vi) Protection and appropriate management of other designated or recommended areas that exist in the plan area, including research natural areas.
(2) Other plan components for integrated resource management to provide for multiple uses that should be included as necessary.
In meeting the requirements of §§ 219.8 through 219.10 and within Forest Service authority, the capability of the plan area, and the fiscal capability of the unit, the plan must provide for multiple uses and ecosystem services, including timber, as follows:
(a)
(i) Statute, executive order, or regulation prohibits timber production on the land;
(ii) The Secretary of Agriculture or the Chief of the Forest Service has withdrawn the land from timber production;
(iii) Timber production would not be compatible with the achievement of desired conditions and objectives established by the plan for those lands;
(iv) The technology is not currently available for conducting timber harvest without causing irreversible damage to soil, slope, or other watershed conditions or substantial and permanent impairment of the productivity of the land;
(v) There is no reasonable assurance that such lands can be adequately restocked within 5 years after final regeneration harvest; or
(vi) The land is not forest land as defined at § 219.19.
(2)
(3)
(b)
(2) The identification in a plan of lands as not suitable for timber production does not preclude the harvest of trees on those lands for other purposes (16 U.S.C. 1604(k)); in particular, timber harvest may be authorized as a tool to assist in achieving or maintaining one or more applicable desired conditions or objectives of the plan. Examples of using timber harvest on lands not suited for timber production may include improving wildlife or fish habitat, thinning to reduce extreme fire risk, or restoring meadow or savanna ecosystems where trees have invaded.
(c)
(d)
(1) Ensure that timber will be harvested from NFS lands only where such harvest would comply with the minimum limits identified in the NFMA (16 U.S.C. 1604(g)(3)(E) and (F)).
(2) Ensure that harvest is carried out in a manner consistent with the protection of soil, watershed, fish, wildlife, recreation, and aesthetic resources.
(3) Establish maximum size limits for areas to be cut in one harvest operation for administrative units that use clearcutting, seed tree cutting, shelterwood cutting, or other cuts designed to regenerate an even-aged stand of timber. Plan components must include standards limiting the maximum size limits for areas to be cut in one harvest operation, according to geographic areas, forest types, or other suitable classifications. This limit may be less than, but must not exceed, 60 acres for the Douglas-fir forest type of California, Oregon, and Washington; 80 acres for the southern yellow pine types of Alabama, Arkansas, Georgia, Florida, Louisiana, Mississippi, North Carolina, South Carolina, Oklahoma, and Texas; 100 acres for the hemlock-Sitka spruce forest type of coastal Alaska; and 40 acres for all other forest types except as provided in this paragraph.
(i) Cut openings larger than those specified may be permitted where larger units will produce a more desirable combination of benefits. Specifications for exceptions shall include the particular conditions under which the larger size is permitted and must set a maximum size permitted under those conditions.
(ii) Size limits exceeding those established in paragraphs (d)(3) and (d)(3)(i) of this section are permitted on an individual timber sale basis after 60 days public notice and review by the regional forester.
(iii) The plan maximum size openings shall not apply to the size of areas harvested as a result of natural catastrophic conditions such as fire, insect and disease attack, or windstorm (16 U.S.C. 1604(g)(3)(F)(iv)).
(4) Limit the quantity of timber that can be removed annually in perpetuity on a sustained-yield basis and provide for departure from this limit, as provided by NFMA. The Chief of the Forest Service must include in the Forest Service Directive System procedures for estimating the quantity of timber that can be removed annually in perpetuity on a sustained-yield basis, and exceptions, consistent with 16 U.S.C. 1611.
(5) Limit the regeneration harvest of even-aged stands of trees to stands that generally have reached the culmination of mean annual increment of growth. This requirement applies only to final regeneration harvest of even-aged stands on lands identified as suitable for timber production and where timber production is the primary purpose for the harvest. Exceptions, set out in 16 U.S.C. 1604(m), are permitted only if consistent with the land management plan. If such exceptions are anticipated, the responsible official should include those exceptions in the land management plan as standards or guidelines. The Chief of the Forest Service must include in the Forest Service Directive System, requirements for assuring that even-aged stands of trees scheduled for final regeneration harvest during the planning period have generally reached culmination of mean annual increment of growth with exceptions as permitted by the NFMA (16 U.S.C. 1604(m)).
(a)
(2) The unit monitoring program sets out the unit monitoring questions and associated indicators. Monitoring questions and associated indicators must be designed to inform the management of resources on the unit, including by testing relevant assumptions, tracking relevant changes, and measuring management effectiveness and progress toward achieving or maintaining desired conditions or objectives. Questions and indicators should be based on one or more desired conditions, objectives, or other plan component in the plan, but not every plan component needs to have a corresponding monitoring question.
(3) The unit monitoring program should be coordinated and integrated with relevant broader-scale monitoring strategies (paragraph (b) of this section) to ensure that monitoring is complementary and efficient, and that information is gathered at scales appropriate to the monitoring questions.
(4) Subject to the requirements of paragraph (a)(5) of this section, the responsible official has the discretion to set the scope and scale of the unit monitoring program, after considering:
(i) Information needs identified through the planning process as most critical for informed management of resources on the unit;
(ii) Existing best available scientific information; and
(iii) Financial and technical capabilities of the Agency.
(5) Each unit monitoring program must contain one or more monitoring questions or indicators addressing each of the following:
(i) The status of select watershed conditions;
(ii) The status of select ecological conditions;
(iii) The status of focal species;
(iv) The status of visitor use and progress toward meeting recreational objectives;
(v) Measurable changes on the unit related to climate change and other stressors on the unit;
(vi) The carbon stored in above ground vegetation;
(vii) The progress toward fulfilling the unit's distinctive roles and contributions to ecologic, social, and economic conditions of the local area, region, and Nation; and
(viii) The effects of management systems to determine that they do not substantially and permanently impair the productivity of the land (16 U.S.C. 1604(g)(3)(C)).
(6) A range of monitoring techniques may be used to carry out the monitoring requirements in paragraph (a)(5) of this section.
(7) This section does not apply to projects or activities; project and activity monitoring may be used to gather information, but monitoring is not a prerequisite for carrying out a project or activity.
(b)
(2) When developing a monitoring strategy, the regional forester shall coordinate with the relevant responsible officials, Agency staff from State and Private Forestry and Research and Development, partners, and the public. Two or more regional foresters may jointly develop broader-scale monitoring strategies.
(3) Each regional forester shall ensure that the broader-scale monitoring strategy is within the financial and technical capabilities of the region and complements other ongoing monitoring efforts.
(4) Projects and activities may be carried out under plans developed, amended, or revised under this part before the regional forester has developed a broad scale monitoring strategy.
(c)
(2) The responsible official shall develop the unit monitoring program as part of the planning process for a new plan development or plan revision. Where a unit's monitoring program has been developed under the provisions of a prior planning regulation and the unit has not initiated plan revision, the responsible official shall change the unit monitoring program within 4 years of the effective date of this part, or as soon as practicable, to meet the requirements of this section.
(3) The regional forester shall develop a broader-scale monitoring strategy as soon as is practicable.
(4) The responsible official and regional forester shall ensure that scientists are involved in the design and evaluation of unit and broad scale monitoring.
(5) To the extent practicable, appropriate, and relevant to the monitoring questions in the program, unit monitoring programs and broader-scale strategies must be designed to take into account:
(i) Existing national and regional inventory, monitoring, and research programs of the Agency, including from the NFS, State and Private Forestry, and Research and Development, and of other governmental and non-governmental parties;
(ii) Opportunities to design and carry out multi-party monitoring with other Forest Service units, Federal, State or local government agencies, scientists, partners, and members of the public; and
(iii) Opportunities to design and carry out monitoring with federally recognized Indian Tribes and Alaska Native Corporations.
(d)
(i) The first monitoring evaluation for a plan or plan revision developed in accordance with this subpart must be completed no later than 2 years from the effective date of plan approval.
(ii) Where the monitoring program developed under the provisions of a prior planning regulation has been changed to meet the requirements of paragraph (c)(2) of this section, the first monitoring evaluation must be completed no later than 2 years from the date the change takes effect.
(iii) The monitoring evaluation report must describe how best available scientific information was taken into account (§ 219.3).
(2) The monitoring evaluation report may be incorporated into other planning documents if the responsible official has initiated a plan revision or relevant amendment.
(3) The monitoring evaluation report may be postponed for one year in case of exigencies, but notice of the postponement must be provided to the public prior to the date the report is due for that year (§ 219.16(c)(5)).
(4) The monitoring evaluation report is not a decision document representing final agency action, and is not subject to the objection provisions of subpart B.
(a)
(b)
(1) Document the need to change the plan (§ 219.6(c));
(2) Provide opportunities for public participation as required in § 219.4 and public notification as required in § 219.16. The responsible official may combine processes and associated public notifications where appropriate, considering the scope and scale of the need to change the plan; and
(3) Amend plans consistent with Forest Service NEPA procedures. The appropriate NEPA documentation for an amendment may be an EIS, an EA, or a CE, depending upon the scope and scale of the amendment and its likely effects.
(c)
(1) A change to the monitoring program may be made as part of plan revision or amendment, but also can be made as an administrative change outside of the process for plan revision or amendment. Any change to the monitoring program may be made only after notice to the public (§ 219.16(c)(5)) of the intended change and consideration of public concerns and suggestions.
(2) All other administrative changes may be made following notice (§ 219.16(c)(5)).
(a)
(1) The rationale for approval;
(2) An explanation of how the plan components meet the sustainability requirements of § 219.8 and the diversity requirements of § 219.9, taking into account the limits of Forest Service authority and the capability of the plan area;
(3) A statement of how the plan, plan revision or plan amendment applies to approved projects and activities (§ 219.15);
(4) A discussion of how the best available scientific information was taken into account and applied in the planning process (§ 219.3);
(5) The concurrence by the appropriate research station director with any part of the plan applicable to any designated experimental forests or experimental ranges (§ 219.2(b)(4)); and
(6) The effective date of the approval.
(b)
(2) The planning record includes documents that support analytical conclusions made and alternatives considered throughout the planning process. The responsible official shall
(a)
(b)
(c)
(1) Modify the proposed project or activity to make it consistent with the applicable plan components;
(2) Reject the proposal or terminate the project or activity;
(3) Amend the plan so that the project or activity will be consistent with the plan as amended; or
(4) Amend the plan contemporaneously with the approval of the project or activity so that the project or activity will be consistent with the plan as amended. This amendment may be limited to apply only to the project or activity.
(d)
(1)
(2)
(3)
(i) Is designed to comply with applicable guidelines as set out in the plan; or
(ii) Is designed in a way that is as effective in carrying out the intent of the applicable guidelines in contributing to the maintenance or attainment of relevant desired conditions and objectives, avoiding or mitigating undesirable effects, or meeting applicable legal requirements (§ 219.7(d)(1)(iv)).
(4)
(i) That the plan identifies as suitable for that type of project or activity; or
(ii) For which the plan is silent with respect to its suitability for that type of project or activity.
(e)
The following public notification requirements apply to plan development, amendment, or revision. Formal notifications may be combined where appropriate.
(a)
(1) To begin the preparation of an assessment for a plan or plan revision, or, when appropriate, a plan amendment;
(2) To initiate the development of a proposed plan or plan revision, or, when appropriate, a plan amendment;
(3) To invite comments on a proposed plan, plan revision, or plan amendment, and associated environmental analysis. For a new plan, plan revision, or a plan amendment for which a draft environmental impact statement is prepared, the comment period is at least 90 days. For an amendment for which a draft environmental impact statement is not prepared, the comment period is at least 30 days;
(4) To begin the objection period for a plan, plan amendment, or plan revision before approval (§ 219.52);
(5) To approve a final plan, plan amendment, or plan revision; or
(6) To announce and describe how a plan, plan amendment, or plan revision process initiated under the provisions of a previous planning regulation will be conformed to meet the provisions of this part, when appropriate under § 219.17(b)(3).
(b) When a plan amendment is approved in a decision document approving a project or activity and the amendment applies only to the project or activity, the notification requirements of 36 CFR part 215 or part 218, subpart A, applies instead of this section.
(c)
(1) When the Chief, the Under Secretary, or the Secretary is the responsible official, notice must be published in the
(2) For a new plan or plan revision, when an official other than the Chief, the Under Secretary, or the Secretary is the responsible official, notice must be published in the
(3) For a plan amendment when an official other than the Chief, the Under Secretary, or the Secretary is the responsible official, notices must be published in the newspaper(s) of record. Notification in the
(4) If a plan, plan revision or plan amendment applies to two or more units, notices must be published in the
(5) Public notice of administrative changes, changes to the monitoring program, plan amendment assessments, or other documented need for amendment, monitoring evaluation reports, or other notices not listed in paragraph (a) of this section, may be made in any way the responsible official deems appropriate.
(d)
(a)
(b)
(1)
(2)
(3)
(c)
In the event that any specific provision of this part is deemed by a court to be invalid, the remaining provisions shall remain in effect.
Definitions of the special terms used in this subpart are set out as follows.
(1) Composition. Major vegetation types, rare communities, aquatic systems, and riparian systems.
(2) Structure. Vertical and horizontal distribution of vegetation, stream habitat complexity, and riparian habitat elements.
(3) Function. Ecological processes such as stream flows, nutrient cycling, and disturbance regimes.
(4) Connectivity. Habitats that exist for breeding, feeding, or movement of wildlife and fish within species home ranges or migration areas.
(1)
(2)
(3)
(4)
This subpart establishes a pre-decisional administrative review (hereinafter referred to as objection) process for plans, plan amendments, or plan revisions. This process gives an individual or organization an opportunity for an independent Forest Service review and resolution of issues before the approval of a plan, plan amendment, or plan revision. This subpart identifies who may file objections to a plan, plan amendment, or plan revision; the responsibilities of the participants in an objection; and the procedures that apply to the review of the objection.
(a) A plan, plan amendment, or plan revision is not subject to objection when the responsible official receives no formal comments (§ 219.62) on that proposal during the opportunities for public comment (§ 219.53(a)).
(b) Plans, plan amendments, or plan revisions proposed by the Secretary of Agriculture or the Under Secretary for Natural Resources and Environment, are not subject to the procedures set forth in this section. A decision by the Secretary or Under Secretary constitutes the final administrative determination of the Department of Agriculture.
(c) A plan, plan amendment, or plan revision is not subject to objection under this subpart if another administrative review process is used consistent with § 219.59.
(d) When a plan, plan amendment, or plan revision is not subject to objection under this subpart, the responsible official shall include an explanation with the signed decision document.
(a) The responsible official shall disclose during the NEPA scoping process and in the appropriate NEPA documents that the proposed plan, plan amendment, or plan revision is subject to the objection procedures in this subpart. This disclosure is in addition to the public notice that begins the objection filing period, as required at § 219.16.
(b) The responsible official shall make available the public notice for beginning of the objection period for a plan, plan amendment, or plan revision (§ 219.16(a)(4)) to those who have requested the environmental documents or are eligible to file an objection consistent with § 219.53.
(c) The content of the public notice for beginning of the objection period for a plan, plan amendment, or plan revision before approval (§ 219.16(a)(4)) must:
(1) Inform the public of the availability of the plan, plan amendment, or plan revision, the appropriate final environmental documents, the draft plan decision document, and any relevant assessment or monitoring evaluation report; the commencement of the 30-day objection period under 36 CFR part 219 subpart B; and the process for objecting.
(2) Include the name of the plan, plan amendment, or plan revision and the name and title of the responsible official, and instructions on how to obtain a copy of the appropriate final environmental documents; the draft plan decision document; and the plan, plan amendment, or plan revision.
(3) Include the name and address of the reviewing officer with whom an objection is to be filed. The notice must specify a street, postal, fax, and e-mail address; the acceptable format(s) for objections filed electronically; and the reviewing officer's office business hours for those filing hand-delivered objections.
(4) Include a statement that objections will be accepted only from those who have previously submitted formal comments specific to the proposed plan, plan amendment, or plan revision during any opportunity for public comment as provided in subpart A.
(5) Include a statement that the publication date of the public notice in the applicable newspaper of record (or the
(6) Include a statement that an objection, including attachments, must
(7) Include a statement describing the minimum content requirements of an objection (§ 219.54(c)).
(a) Individuals and organizations who have submitted substantive formal comments related to a plan, plan amendment, or plan revision during the opportunities for public comment as provided in subpart A during the planning process for that decision may file an objection. Objections must be based on previously submitted substantive formal comments unless the objection concerns an issue that arose after the opportunities for formal comment. The burden is on the objector to demonstrate compliance with requirements for objection. Objections from individuals or organizations that do not meet the requirements of this paragraph must not be accepted; however, objections not accepted must be documented in the planning record.
(b) Formal comments received from an authorized representative(s) of an organization are considered those of the organization only. Individual members of that organization do not meet objection eligibility requirements solely based on membership in an organization. A member or an individual must submit formal comments independently to be eligible to file an objection in an individual capacity.
(c) When an objection lists multiple individuals or organizations, each individual or organization must meet the requirements of paragraph (a) of this section. Individuals or organizations listed on an objection that do not meet eligibility requirements must not be considered objectors, although an objection must be accepted (if not otherwise set aside for review under § 219.55) if at least one listed individual or organization meets the eligibility requirements.
(d) Federal agencies may not file objections.
(e) Federal employees who otherwise meet the requirements of this subpart for filing objections in a non-official capacity must comply with Federal conflict of interest statutes at 18 U.S.C. 202-209 and with employee ethics requirements at 5 CFR part 2635. Specifically, employees must not be on official duty nor use government property or equipment in the preparation or filing of an objection. Further, employees must not include information unavailable to the public, such as Federal agency documents that are exempt from disclosure under the Freedom of Information Act (5 U.S.C. 552 (b)).
(a) Objections must be filed with the reviewing officer in writing. All objections must be open to public inspection during the objection process.
(b) Including documents by reference is not allowed, except for the following list of items that may be referenced by including the name, date, page number (where applicable), and relevant section of the cited document. All other documents, web links to those documents, or both must be included with the objection.
(1) All or any part of a Federal law or regulation.
(2) Forest Service Directive System documents and land management plans.
(3) Documents referenced by the Forest Service in the planning documentation related to the proposal subject to objection.
(4) Formal comments previously provided to the Forest Service by the objector during the proposed plan, plan amendment, or plan revision comment period.
(c) At a minimum, an objection must include the following:
(1) The objector's name and address (§ 219.62), along with a telephone number or e-mail address if available;
(2) Signature or other verification of authorship upon request (a scanned signature for electronic mail may be filed with the objection);
(3) Identification of the lead objector, when multiple names are listed on an objection (§ 219.62). Verification of the identity of the lead objector if requested;
(4) The name of the plan, plan amendment, or plan revision being objected to, and the name and title of the responsible official;
(5) A statement of the issues and/or the parts of the plan, plan amendment, or plan revision to which the objection applies;
(6) A concise statement explaining the objection and suggesting how the proposed plan decision may be improved. If applicable, the objector should identify how the objector believes that the plan, plan amendment, or plan revision is inconsistent with law, regulation, or policy; and
(7) A statement that demonstrates the link between prior formal comments attributed to the objector and the content of the objection, unless the objection concerns an issue that arose after the opportunities for formal comment (§ 219.53(a)).
(a) The reviewing officer must set aside and not review an objection when one or more of the following applies:
(1) Objections are not filed in a timely manner (§ 219.56);
(2) The proposed plan, plan amendment, or plan revision is not subject to the objection procedures of this subpart pursuant to §§ 219.51 and 219.59;
(3) The individual or organization did not submit formal comments (§ 219.53) during scoping or other opportunities for public comment on the proposed decision (§ 219.16);
(4) None of the issues included in the objection is based on previously submitted substantive formal comments unless one or more of those issues arose after the opportunities for formal comment;
(5) The objection does not provide sufficient information as required by § 219.54(c);
(6) The objector withdraws the objection in writing;
(7) The objector's identity is not provided or cannot be determined from the signature (written or electronically scanned), and a reasonable means of contact is not provided (§ 219.54(c)); or
(8) The objection is illegible for any reason and a legible copy cannot easily be obtained.
(b) When an objection includes an issue that is not based on previously submitted substantive formal comments and did not arise after the opportunities for formal comment, that issue will be set aside and not reviewed. Other issues raised in the objection that meet the requirements of this subpart will be reviewed.
(c) The reviewing officer must give written notice to the objector and the responsible official when an objection is set aside from review and must state the reasons for not reviewing the objection. If the objection is set aside from review for reasons of illegibility or lack of a means of contact, the reasons must be documented in the planning record.
(a)
(b)
(2) The day after publication of the public notice for a plan, plan amendment, or plan revision before approval (§§ 219.16 and 219.52), is the first day of the objection filing period.
(3) The publication date of the public notice for a plan, plan amendment, or plan revision before approval (§§ 219.16 and 219.52), is the exclusive means for calculating the time to file an objection. Objectors must not rely on dates or timeframe information provided by any other source.
(c)
(1) The date of the U.S. Postal Service postmark for an objection received before the close of the fifth business day after the objection filing date;
(2) The electronically generated delivery date and time for e-mail and facsimiles;
(3) The shipping date for delivery by private carrier for an objection received before the close of the fifth business day after the objection filing date; or
(4) The official agency date stamp showing receipt of hand delivery.
(d)
(e)
(f)
(g)
(a)
(b)
(2) The reviewing officer's review of and response to the objection(s) is limited to only those issues and concerns submitted in the objection(s).
(3) The response of the reviewing officer will be the final decision of the Department of Agriculture on the objection.
(a) The responsible official may not issue a decision document concerning a plan, plan amendment, or plan revision subject to the provisions of this subpart until the reviewing officer has responded in writing to all objections.
(b) A decision by the responsible official approving a plan, plan amendment, or plan revision must be consistent with the reviewing officer's response to objections.
(c) When no objection is filed within the 30-day time period, the reviewing officer must notify the responsible official. The responsible official's approval of the plan, plan amendment, or plan revision in a plan decision document consistent with § 219.14, may occur on, but not before, the fifth business day following the end of the objection-filing period.
(a) Where the Forest Service is a participant in a multi-Federal agency effort that would otherwise be subject to objection under this subpart, the reviewing officer may waive the objection procedures of this subpart and instead adopt the administrative review procedure of another participating Federal agency. As a condition of such a waiver, the responsible official for the Forest Service must have agreement with the responsible official of the other agency or agencies that a joint agency response will be provided to those who file for administrative review of the multi-agency effort. When such an agreement is reached, the responsible official for the Forest Service shall ensure public notice required in § 219.52 sets forth which administrative review procedure is to be used.
(b) When a plan amendment is approved in a decision document approving a project or activity and the amendment applies only to the project or activity, the administrative review process of 36 CFR part 215 or part 218, subpart A, applies instead of the objection process established in this subpart. When a plan amendment applies to all future projects or activities, the objection process established in this subpart applies only to the plan amendment decision; the review process of 36 CFR part 215 or part 218 would apply to the project or activity part of the decision.
Nothing in this subpart restricts the Secretary of Agriculture from exercising any statutory authority regarding the protection, management, or administration of NFS lands.
This subpart specifies the information that objectors must give in an objection to a plan, plan amendment, or plan revision (§ 219.54(c)). As such, these rules contain information collection requirements as defined in 5 CFR part 1320 and have been approved by Office of Management and Budget and assigned control number 0596-0158.
Definitions of the special terms used in this subpart are set out as follows.
Office of the Deputy Under Secretary of Defense (Civilian Personnel Policy), (DUSD (CPP)), DoD.
Notice.
Section 342(b) of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 1995, Public Law (Pub. L.) 103-337 (10 U.S.C. 2358 note), as amended by section 1109 of NDAA for FY 2000, Public Law 106-65, and section 1114 of NDAA for FY 2001, Public Law 106-398, authorizes the Secretary of Defense to conduct personnel demonstration projects at DoD laboratories designated as Science and Technology Reinvention Laboratories (STRLs). The above-cited legislation authorizes DoD to conduct demonstration projects to determine whether a specified change in personnel management policies or procedures would result in improved Federal personnel management. Section 1105 of the NDAA for FY 2010, Public Law 111-84, 123 Stat. 2486, October 28, 2009, designates additional DoD laboratories as STRLs for the purpose of designing and implementing personnel management demonstration projects for conversion of employees from the personnel system which applied on October 28, 2009. The NAWCAD and the NAWCWD are listed in subsection 1105(a) of NDAA for FY 2010 as two of the newly designated STRLs. These two STRLs will be the participants in the demonstration project proposal described in this
Implementation of this demonstration project will begin no earlier than March 1, 2011.
Since 1966, many studies of Department of Defense (DoD) laboratories have been conducted on laboratory quality and personnel. Almost all of these studies have recommended improvements in civilian personnel policy, organization, and management. Pursuant to the authority provided in section 342(b) of Public Law 103-337, as amended, a number of DoD STRL personnel demonstration projects were approved. These projects are “generally similar in nature” to the Department of Navy's “China Lake” Personnel Demonstration Project. The terminology, “generally similar in nature,” does not imply an emulation of various features, but rather implies a similar opportunity and authority to develop personnel flexibilities that significantly increase the decision authority of laboratory commanders and/or directors. The STRL Personnel Management Demonstration Projects involve broad-banded pay systems and simplified classification; compensation linked to performance, including contribution-based pay; recruitment and staffing changes; and enhanced training and development including critical skills training, Voluntary Emeritus Corps, and sabbaticals.
This demonstration project involves: (1) Two appointment authorities (permanent and modified term); (2) extended probationary period for newly hired employees; (3) pay banding; (4) streamlined delegated examining; (5) modified reduction-in-force (RIF) procedures; (6) simplified job classification; (7) a mission aligned objectives and compensation based appraisal system; (8) market based starting salaries; (9) academic degree and certificate training; (10) sabbaticals; and (11) a Voluntary Emeritus Corps.
The covered organizations transitioned to the National Security Personnel System (NSPS) late in 2008. Subsequently, section 1113 of NDAA for FY 2010, Public Law 111-84,123 Stat. 2486, required all employees to exit NSPS by no later than January 1, 2012. Another section of NDAA for FY 2010, section 1105, identifies NAWCAD and NAWCWD as STRLs and requires them to convert to an STRL demonstration project within 18 months of enactment of NDAA for FY 2010. DoD published notice in 75 FR 55160, September 9, 2010, that Section 1105 of the NDAA for FY 2010, Public Law 111-84, 123 Stat. 2486, October 28, 2009, designated NAWCAD and NAWCWD as new STRLs in subsection 1105(a) of NDAA for FY 2010 and further provided notice of the intent of the Naval Air Warfare Center (NAWC) to model and implement an STRL Personnel Management Demonstration project based on the flexibilities in use by the other STRL laboratories and demonstration projects. Relative to NAWC's intent to model and implement a new demonstration project, DoD received comments from 14 people during the public comment period which ended on October 12, 2010. All comments were carefully considered. The following summary addresses the pertinent comments received, provides responses, and notes resultant changes to the original NAWC project plan published in 75 FR 55160, September 9, 2010. Several commenters addressed more than one topic and each topic was counted separately. Thus, the total number of comments exceeds the number of individual commenters.
In reviewing the comment submissions, several recurring themes were discerned that spanned multiple sections of the proposed regulation and which were not necessarily aimed directly at the substance of the proposed regulation. General issues identified included: (1) Requests for a return to the former demonstration project (officially identified as the Navy Personnel Management Demonstration Project but generally recognized as the China Lake Demo, which became a permanent Alternative Personnel System); (2) the perceived similarity of some aspects between this STRL and the National Security Personnel System (NSPS) and the rescinding of NSPS; (3) transparency and fairness; and (4) a request for the comment period to be extended.
Several comments were received that addressed the topics of the transparency and fairness of the STRL.
Three comments were received that relate to the definition of the organizations participating and the coverage of the STRL.
There were six comments on the proposed pay banding. Four identified the pay bands as being too broad and two addressed the use of a supervisory and managerial pay band.
Four comments addressed the topic of position classification. Three speak to the position series used by the STRL and the other focuses on the method of actually creating and assigning pay schedules and pay bands to positions.
Eleven comments were submitted on the performance management aspects of the STRL. Three addressed the timing of the beginning and end of the annual performance cycle. One spoke to employee self assessments. One commented on the proposed pay pool process. Five expressed thoughts on the performance pay outcomes. The final one identified a concern with the proposed request for reconsideration regulation.
The inclusion of the 0 payout points option for Mission Success provides the flexibility for the supervisor and pay pool panel to appropriately rate and compensate those situations where Mission Success has been fully achieved but the employee is already adequately compensated for that level of work and neither an increase in salary beyond the equivalent of the annual general pay increase or a bonus is warranted for the accomplishments for that year. The employee would receive the full January general increase authorized for all employees so they do not fall behind; but all jobs, no matter what the compensation system, reach a plateau where salary growth levels off; some at the top of the pay scale and others at different points.
There is a degree of complexity in the computation of the payout point value and it can vary by pay pool due to the factors required for the calculation. The design provides for a variable pay point value to allow the ratings to be paramount and drive the outcomes rather than be limited by the payout. The method chosen to implement this capability is one that is similar to a process with which the organization is familiar and has applied successfully in the past.
Three comments were submitted on the hiring authorities for the STRL. Two requested additional hiring flexibilities: one for acquisition workforce jobs and one for re-employed annuitants. The second comment spoke to the tension between the need to tailor the features of the STRL demonstration project to the specific requirements of the proposing organization and the DON's desire to standardize HR operations across the component.
Three comments were submitted on this topic. One each addressing standardized business processes, promotions, and reassignments.
Two comments were received addressing this subject. Both are from sites that will have GS and STRL covered employees in the same work group and each expressed concern about the differing compensation outcomes that are inherent in the STRL vs GS and the potential impacts these might have.
As noted earlier, no matter what the compensation system, over time positions reach a plateau where salary growth levels off; some at the top of the pay scale and others at other points.
Two comments were submitted on the topic of RIF. One addressing competitive areas and the other the employee support mechanisms used in RIF.
Six comments were submitted on the topic of training. Three comments addressed the content of the training. One suggested employees be tested. One addressed remedial training and the final one spoke to the cost of providing training.
The process for determining suitability is nuanced and not amenable to standardized testing. Assessments to determine ability must be developed and validated through a rigorous process. Currently Office of Personnel Management in conjunction with other Executive Agencies is pursuing the viability of such assessment instruments. Pending the outcome of their efforts the STRL's may adapt the recommended instruments. As noted above implementation and sustainment training are still being designed and cannot be finalized until the STRL itself is approved but the availability of training post conversion to refresh and enhance the necessary skills for
Cost of training, both in terms of the dollars spent and the impact on the productivity of the workforce is clearly an important consideration. These factors are being taken into consideration in the training design but delivery of the knowledge and skills needed are also a critical factor. The STRL Demonstration Project training will build upon the training that NAVAIR has already completed. Many of the skills needed are applicable under any of the demonstration projects (including NSPS) and provide a good foundation to build upon and will not need to be re-taught.
Flexibilities published in this
NAWCAD is an organization within NAVAIR dedicated to maintaining a center of excellence for fixed- and rotary-wing aircraft and their propulsion systems, avionics systems, training systems, take-off and landing systems, and associated support and equipment including air traffic control and communications and ship/shore/air operations. NAWCAD has three primary locations: Patuxent River, MD; Lakehurst, NJ; and Orlando, FL. These facilities support research, development, test, evaluation, engineering, and fleet support of Navy and Marine Corps air vehicle systems and trainers. NAWCAD is a world leader in Naval aviation whose products and services include: aircraft, avionics, air-launched weapons, electronic warfare systems, cruise missiles, unmanned aerial vehicles, launch and arresting gear, training equipment and facilities, and all other equipment related to Navy and Marine Corps air power. The mission of the NAWCAD is to be the Navy's principal research, development/test, evaluation, engineering, and fleet support activity for naval aircraft, engines, avionics, aircraft support systems, and ship/shore/air operations. NAWCAD is the steward of the ranges, test facilities, laboratories, and aircraft necessary to support the Fleet's acquisition requirements.
NAWCWD is an organization within NAVAIR dedicated to maintaining a center of excellence in weapons development for the DON. NAWCWD has two locations: China Lake, CA hosting the land test range and Point Mugu, CA hosting the sea test range. NAWCWD is a world leader in Research, Development, Acquisition, Test, and Evaluation (RDA, T&E) of guided missiles, advanced weapons and systems, complex software integration on tactical aircraft, energetic materials, and subsystems. It is also a Center of Excellence for weapons and armaments and live-fire survivability testing. The mission of the NAWCWD is to provide Navy and Marine Corps warriors with effective, affordable, integrated warfare systems, and lifecycle support to ensure battlespace dominance. The NAWCWD is the steward of the ranges, test facilities, and laboratories necessary to support the Fleet's acquisition requirements.
The goal of this demonstration project is to enhance and sustain the quality and professionalism of the covered organizations' workforces through improvements in the efficiency and effectiveness of the human resource system. The project interventions will strive to achieve the best workforce for the mission, adjust the workforce for change, and improve workforce satisfaction. This demonstration project is built on the concepts, and uses much of the same language, as the other STRL demonstration projects already in place in DoD and is guided by 25 years of experience in operating the Navy's “China Lake” demonstration project. The results of the project will be evaluated within five years of implementation.
The purpose of the project is to demonstrate that the effectiveness of DoD STRLs can be enhanced by expanding opportunities available to employees and by allowing greater managerial control over personnel functions through a more responsive and flexible personnel system. Federal laboratories need more efficient, cost effective, and timely processes and methods to acquire and retain a highly creative, productive, educated, and trained workforce. This project, in its entirety, attempts to improve employees' opportunities and provide managers, at the lowest practical level, the authority, control, and flexibility needed to achieve the highest quality organization and hold them accountable for the proper exercise of this authority within the framework of an improved personnel management system.
Many aspects of a demonstration project are experimental. Modifications may be made from time to time as experience is gained, results are analyzed, and conclusions are reached on how the system is working. The provisions of this project plan will not be modified, or extended to individuals or groups of employees not included in the project plan without the approval of the ODUSD(CPP). The provisions of DoDI 1400.37 are to be followed for any modifications, adoptions, or changes to this demonstration project plan.
The current Civil Service General Schedule (GS) system has existed in essentially the same form since 1949. Work is classified into one of fifteen overlapping pay ranges that correspond with the fifteen grades. Base pay is set at one of those fifteen grades and the ten interim steps within each grade. The Classification Act of 1949 rigidly defines types of work by occupational series and grade, with very precise qualifications for each job. This system does not quickly or easily respond to new ways of designing work and changes in the work itself.
The performance management model that has existed since the passage of the Civil Service Reform Act in 1980 has come under extreme criticism. Employees frequently report there is inadequate communication of performance expectations and feedback on performance. There are perceived inaccuracies in performance ratings with general agreement that the ratings are inflated and often unevenly distributed by grade, occupation, and geographic location.
The present reduction-in-force (RIF) process is unresponsive to requirements for work force restructuring and requires enhancement to provide better retention of the highest performing employees with mission appropriate skills.
The need to change the current hiring system is essential as the covered organizations must be able to recruit and retain scientific, engineering, acquisition, skilled technical, and other professional, administrative, and support employees. The covered organizations must be able to compete with the private sector for the best talent and be able to make job offers in a timely manner with the attendant bonuses and incentives to attract high quality employees.
Current limitations on training, retraining, and otherwise developing employees make it difficult to correct skill imbalances and to prepare current employees for new lines of work to meet changing missions and emerging technologies.
1. The primary benefit expected from this demonstration project is greater organizational effectiveness through increased employee satisfaction. The Department of the Navy “China Lake” and NIST demonstration projects produced impressive statistics on increased job satisfaction and quality of
a. Quality in the workforce and resultant products,
b. Timeliness of key personnel processes,
c. Retention of “excellent performers,”
d. Success in recruitment of personnel with critical skills,
e. Management authority and accountability,
f. Satisfaction of customers, and
g. Workforce satisfaction with the personnel management system.
2. An evaluation model was developed for the Director of Defense, Research and Engineering (DDR&E) in conjunction with STRLs, service representatives, and the Office of Personnel Management (OPM). The model, as modified in this plan, will measure the effectiveness of this demonstration project and will be used to measure the results of specific personnel system changes.
NAWCAD and NAWCWD are Warfare Centers within the Naval Air Systems Command and are composed of five diverse major geographic locations. The locations are: Lakehurst, NJ, Patuxent River, MD; Orlando, FL; China Lake, CA; and Pt. Mugu, CA. Additionally, there are employees in a variety of other geographic locations shown in Appendix A. It should be noted that sites with fewer than 10 people may change. Successor organizations will continue coverage in the demonstration project.
This demonstration project will cover approximately 8,400 NAWCAD and NAWCWD civilian employees under title 5 U.S.C. in the occupations listed in Appendix B. The project plan does not cover members of the Senior Executive Service (SES), Scientific and Professional (ST) employees, Federal Wage System (FWS) employees, employees presently covered by the Defense Civilian Intelligence Personnel System (DCIPS), or DON centrally funded interns.
The details and provisions covered under this Personnel Management Demonstration Project do not apply to any bargaining unit within NAWCAD or NAWCWD until a mutual agreement is reached between the STRL organization and the applicable exclusive representative. This demonstration project will not cover any bargaining unit members at implementation. If there is interest on the part of any of NAWCAD's or NAWCWD's bargaining units at any of their sites in participating in the NAWCAD or NAWCWD STRL demonstration project, negotiations would begin after publication of this
An overarching objective in the project design has been the development of a personnel system that provides a maximum opportunity for adaptability to meet the variety of requirements of organizations engaged in missions ranging from RDA, T&E of guided missiles, advanced weapons and systems, complex software integration on tactical aircraft, energetic materials and subsystems to fixed- and rotary-wing aircraft and their propulsion systems, avionics systems, training systems, take-off and landing systems, associated support and equipment including air traffic control and communications, and ship/shore/air operations. This demonstration project is built upon the successes of the many demonstration projects that have preceded it and adapts many of the provisions and features that have been shown to be successful in these other STRL demonstration projects to the NAWCAD and NAWCWD organizations.
1. The covered organizations will create a Personnel Management Board to oversee and monitor the fair, equitable, and consistent implementation of the provisions of the demonstration project to include establishment of internal controls and accountability. Members of the board are senior leaders appointed by the Executive Directors of the covered organizations. As needed, ad hoc members will serve in an advisory capacity to the Board.
2. The board will execute the following:
a. Establish policies and issue guidance on the composition of pay pools in accordance with the guidelines of this proposal and internal procedures;
b. Review operation of pay pools and provide guidance to Pay Pool Managers;
c. Oversee disputes in pay pool issues;
d. Establish policies and issue guidance on the formulation and execution of the civilian pay budget;
e. Establish policies and issue guidance on the awards pools;
f. Establish policies and issue guidance on hiring and promotion base pay as well as exceptions to pay-for-performance base pay increases;
g. Establish policies and issue guidance on classification review and oversight, monitoring and adjusting classification practices and deciding board classification issues;
h. Approve major changes in position structure;
i. Address issues associated with multiple pay systems during the demonstration project;
j. Establish policies and issue guidance on and approve Standard Performance Elements and Benchmarks;
k. Assess the need for changes to demonstration project procedures and policies;
l. Ensure in-house budget discipline;
m. Establish policies and issue guidance for workforce staffing and budget plans;
n. Develop policies and procedures for administering Developmental Opportunity Programs;
o. Ensure that all employees are treated in a fair and equitable manner in accordance with the policies, regulations and guidelines covering this demonstration project; and,
p. Monitor the evaluation of the project.
The design of the pay banding system has the benefit of being preceded by exhaustive studies of pay banding systems currently practiced in the Federal sector. The pay banding system will replace both the current NSPS and GS structure. The flexibilities in this pay banding section are similar in nature to the authority granted to: The Naval Ocean Systems Center, San Diego, California 92152 and the Naval Weapons Center, China Lake, California 93555, 45 FR 26504, April 18, 1980.
Occupations with similar characteristics will be grouped together into one of five occupational families with pay band levels designed to facilitate pay progression. Progression through the band depends on individual achievement, contribution to the mission goals, and accomplishment of higher level, broader scope, more difficult work assignments. Each occupational family will be composed of pay bands corresponding to recognized advancement and career progression expected within the
a. Scientific and Engineering (S&E) (Pay Plan DP): This occupational family includes technical professional positions, such as engineers, physicists, chemists, mathematicians, operations research analysts, and computer scientists. Specific course work or educational degrees are required for these occupations. Five bands have been established for the S&E occupational family:
(1) Band I is a student trainee developmental track covering GS-1, step 1, through GS-4, step 10.
(2) Band II is a developmental track covering GS-5, step 1, through GS-9, step 10.
(3) Band III is an intermediate developmental track covering GS-9, step 1, through GS-11, step 10.
(4) Band IV is a full-performance technical track covering GS-12, step 1, through GS-13, step 10.
(5) Band V includes senior technical positions covering GS-14, step 1, through GS-15, step 10.
b. S&E Technician (Pay Plan DT): This occupational family includes technician positions, such as engineering technicians, electronics technicians, physical science technicians, mathematic technicians, and geodetic technicians. These occupations require practical technical expertise in scientific or engineering support but specific course work or educational degrees are not required for these occupations. Five bands have been established for the S&E Technician occupational family:
(1) Band I is an entry level trainee developmental track covering GS-1, step 1, through GS-4, step 10.
(2) Band II is a developmental/full performance track covering GS-5, step 1, through GS-8, step 10.
(3) Band III is a full-performance technical track covering GS-9, step 1 through GS-10, step 10.
(4) Band IV is a senior technical track covering GS-11, step 1 through GS-12, step 10.
(5) Band V is an expert technical track covering GS-12, step 1, through GS-13, step 10.
c. Technical Specialist (Pay Plan DS): This occupational family includes such positions as logistics management specialists, equipment specialists, computer specialists, and telecommunications specialists. Employees in these positions may or may not require specific course work or educational degrees. Six bands have been established for this occupational family:
(1) Band I is a student trainee developmental track covering GS-1, step 1, through GS-4, step 10.
(2) Band II is a developmental/full performance track covering GS-5, step 1, through GS-8, step 10.
(3) Band III is a developmental/full performance track covering GS-9, step 1, through GS-10, step 10.
(4) Band IV is a full performance track covering GS-11, step 1, through GS-12, step 10.
(5) Band V is a senior specialist track covering GS-12, step 1, through GS-13, step 10.
(6) Band VI is an expert specialist track covering GS-14, step 1, through GS-15, step 10.
d. Business Professional and Program Management (Pay Plan DA): This occupational family includes such positions as program managers, program acquisition specialists, budget officers, financial managers, accountants, administrative officers, human resources specialists, and management analysts. Employees in these positions may or may not require specific course work or educational degrees. Six bands have been established for this occupational family:
(1) Band I is a student trainee developmental track covering GS-1, step 1, through GS-4, step 10.
(2) Band II is a developmental/full performance track covering GS-5, step 1, through GS-8, step 10.
(3) Band III is a developmental/full performance track covering GS-9, step 1, through GS-10, step 10.
(4) Band IV is a full performance track covering GS-11, step 1, through GS-12, step 10.
(5) Band V is a senior specialist track covering GS-12, step 1, through GS-13, step 10.
(6) Band VI is an expert specialist track covering GS-14, step 1, through GS-15, step 10.
e. Administrative Support (Pay Plan DG): This occupational family is composed of positions for which specific course work or an educational degree is not required. Clerical work usually involves the processing and maintenance of records. Assistant work requires knowledge of methods and procedures within a specific administrative area. This family includes such positions as secretaries, office managers, office automation clerks, security technician, safety technician, library technician and budget/program/computer assistants. Six bands have been established for this occupational family:
(1) Band I includes entry-level/developmental positions covering GS-1, step 1, through GS-3, step 10.
(2) Band II
(3) Band III
(4) Band IV
(5) Band V includes senior technicians/assistants/secretaries covering GS-8, step 1, through GS-9, step 10.
(6) Band VI includes expert technicians/assistants/secretaries covering GS-10, step 1, through GS-11, step 10.
f. The Supervision and Management pay band includes all employees performing supervisory functions. This pay band is not applicable to team leaders. To be classified to these pay bands the supervisor must perform the full range of supervisory duties. To meet the full range of supervisory duties the supervisor must perform 3 of the first 4, and a total of 6 or more of the following:
(1) Plan work and prepare performance plans covering work to be accomplished by subordinates, set and adjust short-term priorities, and prepare schedules for completion of work;
(2) Assign work to subordinates based on priorities, selective consideration of the difficulty and requirements of assignments, and the capabilities of employees;
(3) Evaluate work performance of subordinates and recommend official performance ratings;
(4) Give advice, counsel, or instruction to employees on both work and administrative matters;
(5) Interview candidates for positions in the unit; recommend appointment, promotion, or reassignment to such positions;
(6) Hear and resolve complaints from employees, referring group grievances and more serious unresolved complaints to a higher level supervisor or manager;
(7) Effect minor disciplinary measures, such as warnings and reprimands, recommending other action in more serious cases;
(8) Identify developmental and training needs of employees, providing or arranging for needed development and training;
(9) Find ways to improve production or increase the quality of the work directed; and
(10) Make appropriate distinctions in levels of performance while equitably applying performance standards.
A supervisory position cannot be established on the basis of only one subordinate position. These pay bands can include any series.
(1) Band II is a supervision and management track covering GS-6, step 1, through GS-8, step 10.
(2) Band III is a supervision and management track covering GS-9, step 1, through GS-12, step 10.
(3) Band IV is a supervision and management track covering GS-13, step 1, through GS-14, step 10.
(4) Band V is a supervision and management track covering GS-14, step 1, through GS-15, step 10.
(5) Band VI is reserved for those S&E professional positions classified above GS-15.
The demonstration project pay bands for the occupational families and how they relate to the current GS and NSPS framework are shown in Figure 1.
The pay banding plan for the Supervision and Management pay schedule includes a pay band VI to provide the ability to accommodate positions having duties and responsibilities that exceed the GS-15 classification criteria. This pay band is based on the Above GS-15 Position concept found in other STRL personnel management demonstration projects that was created to solve a critical classification problem. The STRLs have positions warranting classification above GS-15 because of their technical expertise requirements including inherent supervisory and managerial responsibilities. However, these positions are not considered to be appropriately classified as Scientific and Professional Positions (STs) because of the degree of supervision and level of managerial responsibilities. Neither are these positions appropriately classified as Senior Executive Service (SES) positions because of their requirement for advanced specialized scientific or engineering expertise and because the positions are not at the level of general managerial authority and impact required for an SES position.
The original Above GS-15 Position concept was to be tested for a five-year period. The number of trial positions was set at 40 with periodic reviews to determine appropriate position requirements. The Above GS-15 Position concept is currently being evaluated by DoD management for its effectiveness; continued applicability to the current STRL scientific, engineering, and technology workforce needs; and appropriate allocation of billets based on mission requirements. The degree to which the laboratory plans to participate in this concept and develop classification, compensation and performance management policy, guidance, and implementation processes will be based on the final outcome of the DoD evaluation. Additional guidance will be included in NAWCAD/NAWCWD internal issuances.
The flexibilities in this Classification section are similar in nature to the authority granted to the Naval Ocean Systems Center, San Diego, California 92152 and the Naval Weapons Center, China Lake, California 93555, 45 FR 26504, April 18, 1980.
The present GS classification system has over 400 occupational series, which are divided into 23 occupational groupings. The covered organizations currently have positions in approximately 132 occupational series that fall into 21 occupational groupings. All positions listed in Appendix B will be in the classification structure. Provisions will be made for including other occupations in response to changing missions.
The present system of OPM classification standards will be used for the identification of proper series and occupational titles of positions within the demonstration project. Current OPM position classification standards will not be used to grade positions in this project. However, the grading criteria in those standards will be used as a framework to develop new and simplified standards for the purpose of pay band determinations. The objective is to record the essential criteria for each pay band within each occupational family by stating the characteristics of the work, the responsibilities of the position, and the competencies required. New position descriptions will replace the current job descriptions. The classification standard for each pay band will serve as an important component in the new position description, which will also include position-specific information, and provide selective placement factors and other data element information pertinent to the job.
Specialty area codes (SAC) written as narrative descriptions and assigned a specific identification code may be used to further differentiate types of work and the competencies required for particular positions within an occupational family and pay band. Each code represents a specialization or type of work within the occupation.
Fair Labor Standards Act (FLSA) exemption and non-exemption determinations will be consistent with criteria found in 5 CFR part 551. All employees are covered by the FLSA unless they meet the criteria for exemption. The duties and responsibilities outlined in the classification standards for each pay band will be compared to the FLSA criteria. As a general rule, the FLSA status can be matched to occupational family and pay band as indicated in Figure 2. For example, positions classified in Pay Band I of the S&E occupational family are typically nonexempt, meaning they are covered by the overtime entitlements prescribed by the FLSA. An exception to this guideline includes supervisors/managers whose primary duty meets the definitions outlined in the OPM GS Supervisory Guide. Therefore, supervisors/managers in any of the pay bands who meet the foregoing criteria are exempt from the FLSA. Supervisors with classification authority will make the determinations on a case-by-case basis by comparing assigned duties and responsibilities to the classification standards for each pay band and the 5 CFR part 551 FLSA criteria. Additionally, the advice and assistance of the servicing Human Resources Office (HRO) and the servicing Human Resources Service Center (HRSC) can be obtained in making determinations. The benchmark position descriptions will not be the sole basis for the determination; the actual duties performed are the controlling criteria. Exemption criteria will be narrowly construed and applied only to those employees who clearly meet the spirit of the exemption.
N—Non-Exempt from FLSA; E—Exempt from FLSA; N/E—Exemption status determined on a case-by-case basis.
Although typical exemption status under the various pay bands is shown in the above table, actual FLSA exemption determinations are made on a case-by-case basis.
The covered organizations' Executive Directors will have delegated classification authority for all pay bands with the exception of Supervision and Management band VI and may, in turn, re-delegate this authority to appropriate levels. Position descriptions will be developed to assist managers in exercising delegated position classification authority. Managers will identify the occupational family, job series, functional code, specialty work code, pay band level, and the appropriate acquisition codes. Human resources specialists will provide ongoing consultation and guidance to managers and supervisors throughout the classification process. These decisions will be documented on the position description.
Classification appeals under this demonstration project will be processed using the following procedures: An employee may appeal the determination of occupational family, occupational series, position title, and pay band of his/her position at any time. An employee must formally raise the area of concern to supervisors in the immediate chain of command, either verbally or in writing. If the employee is not satisfied with the supervisory response, he/she may then appeal to the Executive Director of his/her organization. If the employee is not satisfied with the Executive Director's response, he/she may then appeal to the DoD appellate level. Appeal decisions rendered by DoD will be final and binding on all administrative, certifying, payroll, disbursing, and accounting officials of the government. Classification appeals are not accepted on positions which exceed the equivalent of a GS-15 level. Additional guidance will be included in the NAWCAD/NAWCWD internal issuances.
An employee may not appeal the accuracy of the position description, the demonstration project classification criteria, or the pay-setting criteria; the assignment of occupational series to the occupational family; the propriety of a pay schedule; or matters covered by an administrative or negotiated grievance procedure; or an alternative dispute resolution procedure.
The evaluations of classification appeals under this demonstration project are based upon the demonstration project classification criteria. Case files will be forwarded for adjudication through the HRO/HRSC providing personnel service and will include copies of appropriate demonstration project criteria.
The purpose of mission aligned objectives and compensation is to directly link the work of the employee to the mission of the organization and provide a mechanism for recognizing the impact of the employee's accomplishments and contributions to help achieve that mission. It also provides an effective, efficient, and flexible method for assessing, compensating, and managing the covered organization's workforce. It is essential for the development of a highly productive workforce and to provide management at the lowest practical level, the authority, control, and flexibility needed to achieve a quality organization and meet mission requirements. Mission aligned objectives and compensation allows for more employee involvement in the assessment process, strives to increase communication between supervisor and employee, promotes a clear accountability of performance, facilitates employee career progression, and provides an understandable and rational basis for pay changes by linking mission directly to both annual evaluations and compensation outcomes.
The mission aligned objectives and compensation system uses annual payouts that are based on the employee's accomplishments and contributions to mission
Employee's who do not meet the 90-day minimum requirement will be ineligible for a normal rating and will be given a presumptive rating. They may receive only the general pay increase and they may also receive title 5 cash awards if appropriate.
The system will have the flexibility to be modified, if necessary, as more experience is gained under the project. The flexibilities in this Mission Aligned Objectives and Compensation section are similar in nature to the authority granted to: (1) The Naval Ocean Systems Center, San Diego, California 92152 and the Naval Weapons Center, China Lake, California 93555, 45 FR 26504, April 18, 1980, and (2) the Army Research Laboratory (ARL), 65 FR 3500, January 21, 2000.
Individual mission objectives will be directly related to achieving the mission of the employee's organization. They define a target level of activity, expressed as a tangible, measurable objective, against which actual achievement can be compared. These objectives will specifically identify what is expected of the employee during the rating period and will typically consist of three to ten results-oriented statements. It is expected that these objectives will also incorporate important behavioral practices such as teamwork and cooperation where they are key to successful accomplishment of the assignment. A Supervision/EEO objective is mandatory for all managers/supervisors. The employee and his/her supervisor will jointly develop the employee's individual mission objectives at the beginning of the rating period. These are to be reflective of the employee's duties/responsibilities, pay band and pay level in the band as well as the mission/organizational goals and priorities. Objectives will be reviewed annually and revised upon changes in pay reflecting increased responsibilities commensurate with pay increases. Use of generic one-size-fits-all objectives will be avoided, as individual mission objectives are to define an individual's specific responsibilities and expected accomplishments for the performance year. In contrast, rating benchmarks as described in the next paragraph will identify characteristics, against which the accomplishment of objectives will be measured. As a part of this demonstration project, training focused on overall organizational objectives and the development of individual mission objectives will be held for both supervisors and employees.
Individual mission objectives may be jointly modified, changed or deleted as appropriate during the rating cycle. As a general rule, objectives should only be changed when circumstances outside the employee's control prevent or hamper the accomplishment of the original objectives. It is also appropriate to change objectives when mission or workload shifts occur.
All objectives are critical. A critical mission objective is defined as an attribute of job performance that is of sufficient importance that achievement below the minimally acceptable level requires remedial action and may be the basis for removing an employee from his/her position. Non-critical objectives will not be used. Each of the objectives may be assigned a weight, which reflects its importance in accomplishing an individual's mission objectives. The minimum weight assigned may not be less than 10%. The sum of the weights for all of the elements must equal 100. At the beginning of the rating period, higher level managers will review the objectives and weights assigned to employees within the pay pool, to verify consistency and appropriateness
Rating benchmarks define characteristics that will be used to evaluate the employee's success in accomplishing his/her individual mission objectives. The use of characteristics for scoring purposes helps to ensure comparable scores are assigned while accommodating diverse individual objectives. A single set of rating benchmarks for each band or rating benchmarks by career stage may be used for evaluating the annual performance of all NAWCAD and NAWCWD personnel covered by this plan. An example of each type of benchmark is shown at Appendices D and E. The set of benchmarks used may evolve over time, based on experience gained during each rating cycle. This evolution is essential to capture the critical characteristics the organization encourages in its workforce toward meeting individual and organizational objectives. This is particularly true in an environment where technology and work processes are changing at an increasingly rapid pace. The Personnel Management Board will annually review the set of benchmarks and set them for the entire organization before the beginning of the rating period.
The most effective means of communication is person-to-person discussion between supervisors and employees of requirements, performance goals, and desired results. Employees and supervisors alike are expected to actively participate in these discussions for optimum clarity regarding expectations and identify potential obstacles to meeting goals. In addition, employees should explain (to the extent possible) what they need from their supervisor to support goal accomplishment. The timing of these discussions will vary based on the nature of work performed, but will occur at least at the mid-point and end of the rating period. The supervisor and employee will discuss job performance and accomplishments in relation to the expectations in the mission aligned objectives. At least one review, normally the mid-point review, will be documented as a formal progress review. More frequent, task specific,
At the end of the rating period, following a review of the employee's accomplishments, the supervisor will rate each of the individual mission objectives. Benchmark performance standards will be developed that describe the level of performance associated with a score. Using these benchmarks, the supervisor decides where the achievements and contributions of the employee most closely match the benchmarks and assigns an appropriate score. It should be noted that these scores are not discussed with the employee or considered final until all scores are reconciled and approved by the Pay Pool Manager. The rating scores will then be multiplied by the objective-weighting factor to determine the weighted score expressed to two decimal points. The weighted scores for each objective will then be totaled to determine the employee's overall appraisal score and rounded to a whole number as follows: if the first two digits to the right of the decimal are .51 or higher, it will be rounded to the next higher whole number; if the first two digits to the right of the decimal are .50 or lower, then the decimal value is truncated.
The covered STRL organizations will use a five-level rating methodology with associated payout point ranges in which level five signifies the highest level of performance. The rater will prepare and recommend the rating, number of payout points, and the distribution of the payout between base pay increase and bonus, as applicable, for each employee. These recommendations will then be reviewed by the pay pool panel to ensure equitable rating criteria and methodologies have been applied to all pay pool employees. The final determination of the rating, number of payout points, and payout distribution will be a function of the pay pool panel process and will be approved by the Pay Pool Manager. The criteria used to determine the number and distribution of payout points to assign an employee may include assessment of the employee's contribution towards achieving the mission, the employee's type and level of work, the employee's current compensation and the criticality of their contribution to mission success, consideration of specific achievements, or other job-related significant accomplishments or contributions. The proposed rating and payout point schema is:
Employees with a total score of two or above will receive the equivalent of the authorized GS January general pay increase (GPI). Employees with a score of one will not receive the January GPI. A rating of one or below will result in a rating of Unacceptable, and the employee will not receive the January GPI and will require administrative action to address the performance deficiency. A score of one or below on a single objective will also result in a rating of Unacceptable.
Employees in receipt of a Letter of Warning of Unacceptable Performance at the end of the performance year will have their rating deferred until the end of the improvement period. At the end of the improvement period, the supervisor will assign a final rating and submit it to the pay pool panel for consideration.
Following the initial scoring of each employee by the rater, the rating officials in an organizational unit, along with their next level of supervision, will review and compare recommended ratings to ensure consistency and equity of the ratings. In this step, each employee's individual mission objectives, accomplishments, preliminary scores, and pay are compared. Through discussion and consensus building, consistent and equitable ratings are reached. Managers will not prescribe a distribution of ratings. The Pay Pool Manager will then chair a final review with the rating officials who report directly to him or her to validate these ratings and resolve any scoring issues. If consensus cannot be reached in this process, the Pay Pool Manager makes all final decisions. After this reconciliation process is complete, ratings are finalized. Payouts proceed according to each employee's final rating and payout distribution. Upon approval of this plan, implementing procedures and regulations will provide details on this process to employees and supervisors.
The covered organizations' employees will be placed into pay pools. Neither the Pay Pool Manager, supervisors, or pay pool panel members within a pay pool will in any way recommend or participate in setting their own rating or individual payout except for the normal employee self-assessment process. Pay pools are combinations of organizational units (e.g., level 3 competencies (divisions), level 4 competencies (branches), and level 5 competencies (sections)), functional categories or other groupings of employees that are defined for the purpose of determining payouts under the mission aligned objectives and compensation system. The guidelines in the next paragraph are provided for determining pay pools. These guidelines will normally be followed. However, the Executive Directors of the covered organizations may deviate from the guidelines if there is a compelling need to do so.
The Executive Directors of the covered organizations will establish pay pools. Typically, pay pools will have between 35 and 300 employees. A pay pool should be large enough to encompass a reasonable distribution of ratings but not so large as to compromise rating consistency. Large pay pools may use sub pay pools subordinate to the pay pool due to the size of the pay pool population, the complexity of the mission, or other similar criteria. Pay pool panel members will not serve on pay pools where their own ratings and payouts are determined. Supervisors and non-supervisors may be placed in separate pay pools. Decisions regarding the amount and distribution of the payouts are based on the employee's most recent rating of record for the performance year, the criteria listed in section III.C.4 above, the type and nature of the funding available to the pay pool, and the number of payout points assigned by the pay pool. Additional guidance on pay pool design and composition will be included in NAWCAD/NAWCWD internal issuances.
Funds within a pay pool available for performance payouts are calculated from anticipated pay increases under the existing system and divided into two components, base pay and bonus. The funds within a pay pool used for base pay increases are those that would have been available from within-grade increases, quality step increases and promotions under the GS system (excluding the costs of promotions still provided under the pay banding system). This amount will initially be defined based on historical data and will initially be set at no less than 2.4% of total base pay annually. The funds
The payout an employee will receive is based on the total performance rating from the mission aligned objectives and compensation assessment process. An employee will receive a payout as a percentage of base pay. This percentage is based on the number of payout points that equates to their final appraisal score.
The value of a payout point cannot be exactly determined until the rating and reconciliation process is completed and all scores are finalized. The payout point value is expressed as a percentage. The formula that computes the value of each payout point uses base pay rates and is based on:
a. The sum of the base pay of all the employees in the pay pool times the pay pool percentage factor;
b. The employee's base pay;
c. The number of payout points awarded to each employee in the pay pool; and
c. The total number of payout points awarded in the pay pool.
An individual payout is calculated by first multiplying the payout points earned by the payout point value and multiplying that product by base pay. An adjustment is then made to account for locality pay or staffing supplement. A Pay Pool Manager is accountable for staying within pay pool limits and final decisions on base pay increases and/or bonuses to individuals based on rater recommendations, the final score, the pay pool funds available, and the employee's base pay.
The amount of money available for the performance payouts is divided into two components, base pay increases and bonuses. The base pay and bonus funds are based on the pay pool funding formula established annually. Once the individual performance amounts have been determined, the next step is to determine what portion of each payout will be in the form of a base pay increase as opposed to a bonus payment. The payouts made to employees from the pay pool may be a mix of base pay and bonus, such that all of the allocated funds are disbursed. To continue to provide performance incentives while also ensuring cost discipline, base pay increases may be limited or capped. Certain employees will not be able to receive the projected base pay increase due to base pay caps. Base pay is capped when an employee reaches the maximum rate of base pay in an assigned pay band or when a control point applies (
When capped, the total payout an employee receives will be in the form of a bonus versus the combination of base pay and bonus. Bonuses are cash payments and are not part of the base pay for any purpose (
a. NAWCAD and NAWCWD will employ an Extraordinary Achievement Allowance designed to optimize organizational effectiveness. An EAA is defined as a temporary monetary allowance up to 25 percent of base pay, which, when added to an employee's rate of base pay, may not exceed the rate of basic pay for Executive Level IV. It is paid on either a bi-weekly basis concurrent with normal pay days or as a lump sum following completion of a designated contribution period, or combination of these, at the discretion of the Executive Director/Commanding Officer of the appropriate Naval Air Warfare Center. It is not base pay for any purpose, e.g., retirement, life insurance, severance pay, promotion, or any other payment or benefit calculated as a percentage of base pay. The EAA will be available to certain employees whose present contributions are worthy of a higher career level and whose level of achievement is expected to continue at the higher career level for at least one year.
b. Award of the EAA will generally be appropriate under the following circumstances: (1) Employees have reached the top of their target career levels, (2) when it is not certain that the higher level contributions will continue indefinitely (
c. To be eligible for EAA, employees must meet the criteria below:
(1) Employees in the S&E, Technical, and Business Professional and Program Management career tracks are eligible for the EAA if their contribution to the
(2) Employees may receive an EAA for up to five years. The EAA authorization will be reviewed and reauthorized as necessary, but at least annually at the time of the Mission Aligned Objectives and Compensation System appraisal through nomination by the Pay Pool Manager and approval by the appropriate Executive Director/Commander.
(3) Monetary payment may be up to 25 percent of base pay.
(4) Nominees are required to sign a statement indicating they understand that the EAA is a temporary allowance; it is not a part of base pay for any purpose; it is subject to review at any time, but at least on an annual basis, and the reduction or termination of the EAA is neither appealable nor grievable.
All other details regarding nomination, termination, reduction, allocation, and budget determination will be stipulated by internal business rules, policies, or procedures established by the Personnel Management Board.
As a compensation management tool the Personnel Management Board may establish pay ranges appropriate for a group or class of positions within a pay band or pay bands. Advancement of pay beyond the assigned pay range will generally require approval above the Pay Pool Manager prior to finalizing the pay pool decisions. The request must demonstrate that the complexity and responsibility of the position have substantially changed and the duties of the position are expected to continue at this level in the future thus warranting assignment of the position to a higher pay range. Control points may apply in every occupational family and pay band. Additional guidance will be included in NAWCAD/NAWCWD internal issuances.
To provide additional flexibility in motivating and rewarding individuals and groups, some portion of the performance award budget will be reserved for special acts and other categories as they occur. Awards may include, but are not limited to, special acts, patents, invention awards, suggestions, on-the-spot, and time-off. The funds available to be used for traditional title 5 U.S.C. awards are separately funded within the constraints of the organization's budget.
While not directly linked to the Mission Aligned Objectives and Compensation system, this additional flexibility is important to encourage outstanding accomplishments and innovation in achieving the diverse mission of the covered organizations. Additionally, to foster and encourage teamwork among its employees, organizations may give group awards. Thus, a team leader may recommend and a supervisor may allocate a sum of money to a team for outstanding performance.
The NAWCAD and NAWCWD Commanders will have the authority to grant special act awards to covered employees of up to $25,000 IAW the criteria of SECNAVINST 12451.3. This authority may be delegated to the Executive Directors of the covered organizations.
Employees who receive an unacceptable rating of record will not receive performance payouts or any portion of the general pay increase and as a result will “migrate” downward in the pay band. This occurs because the rate of base pay in a pay band increases as the result of the general pay increase (5 U.S.C. 5303). If their performance rating continues as Unacceptable, employees who reach the bottom of the overlapping pay scales (they remain identified in the higher classification level as long they are covered in that range) will cross the line into the next lower classification level without specific adverse or performance based action. This migration is necessary for an employee whose performance over a period of time has been deficient enough to merit the employee's placement in lower level duties/responsibilities where new opportunities for acceptable performance exist, Clearly the employee who has experienced several performance evaluations and who, in each case, has been given a year to demonstrate improvement has been provided equal or better “due process” than the obviously unsatisfactory employee who is accorded immediate adverse or performance-based action procedures and downgraded or removed after the required 30-day notice period. Further, it should be noted that in these instances the employee's pay will remain constant, the downward migration results from the need to comply with statutory pay levels. Adverse or performance-based action procedures will cover demotion between levels or removal where performance is clearly so unsatisfactory as to preclude retention in the current pay band or as an employee.
An employee may request reconsideration of the rating-of-record received under the mission aligned objectives and compensation system. A rating of record or job objective rating may be reconsidered by request of an employee only through the process specified in this subpart and implementing issuances. This process will be the sole and exclusive agency administrative process for employees to request reconsideration of a rating of record. Consistent with this part, Pay Pool Managers will make the decision on reconsiderations of rating of record. In cases where the Pay Pool Manager is also the first line supervisor or rating official, the request for reconsideration will be referred to a different Pay Pool Manager or higher level supervisor above the Pay Pool Manager. Pay Pool Managers' decisions are final. A payout point assignment determination, payout distribution determination, or any other payout matter will not be subject to the reconsideration process or any other agency administrative grievance system.
In the event a reconsideration or negotiated grievance decision results in an adjusted rating of record the revised rating will be referred to the Pay Pool Manager for recalculation of the employee's performance payout amount and distribution. Any adjustment to base pay will be retroactive to the effective date of the performance payout. Base pay adjustments will be based on the payout point range appropriate for the adjusted rating of record. Payout point values for the adjusted rating of record will reflect the payout point value paid to other members across the pay pool for that rating cycle. Decisions made through the reconsideration process or a negotiated grievance procedure will not result in recalculation of the payout made to other employees in the pay pool.
Except where specifically waived or modified in this plan, adverse action procedures under 5 CFR part 752 remain unchanged.
Competitive service positions will be filled through Merit Staffing, direct-hire authority, or Delegated Examining.
The qualifications required for placement into a position in a pay band within an occupational family will be determined using the OPM “Operating Manual: Qualifications Standards for General Schedule Positions.” Since the
Selective factors may be established for a position in accordance with the OPM's “Operating Manual: Qualifications Standards for General Schedule Positions,” when determined to be critical to successful job performance. These factors will become part of the minimum requirements for the position, and applicants must meet them in order to be eligible. If used, selective factors will be stated as part of the qualification requirements in vacancy announcements and recruiting bulletins.
NAWCAD and NAWCWD propose to demonstrate a streamlined examining process for both permanent and non-permanent positions. This authority will be supported by the applicable servicing Human Resource Offices and Human Resources Service Centers in accordance with the Department of Navy's common business processes, systems, and tools. The “Rule of Three” will be eliminated. When there are no more than 15 qualified applicants and no preference eligibles, all eligible applicants are immediately referred to the selecting official without rating and ranking. Rating and ranking will be required only when the number of qualified candidates exceeds 15 or there is a mix of preference and non-preference applicants. Statutes and regulations covering veterans' preference will be observed in the selection process and when rating and ranking are required. If the candidates are rated and ranked, a random number selection method will be used to determine which applicants will be referred when scores are tied after the rating process. Veterans will be referred ahead of non-veterans with the same score. Additional guidance on operating processes will be included in NAWCAD/NAWCWD internal issuances.
The covered organizations will use the Distinguished Scholastic Achievement Appointment Authority. The DSAA uses an alternative examining process, which provides the authority to appoint individuals with undergraduate or graduate degrees through the doctoral level to professional positions up to the equivalent of GS-12 (DP-04 or DS-04/05). This enables the covered organizations to respond quickly to hiring needs for eminently qualified candidates possessing distinguished scholastic achievements. Candidates may be appointed provided they meet the minimum standards for the position as published in OPM's “Operating Manual: Qualifications Standards for General Schedule Positions” and the candidate has a cumulative grade point average of 3.5 (on a 4.0 scale) or better in their field of study (or other equivalent score) or are within the top 10 percent of a university's major school of graduate studies for professional occupations, etc.
For actions taken under the auspices of the demonstration project, the legal authority, Public Law 103-337, as amended, will be used. For all other actions, the nature of action codes and legal authority codes prescribed by OPM, DoD, or DON will continue to be used.
NAWCAD and NAWCWD conduct a variety of projects that range from three to six years. The current four-year limitation on term appointments, as described in 5 CFR part 316, often forces the termination of term employees prior to completion of projects they were hired to support. This disrupts the research and development process and affects the organization's ability to accomplish the mission and serve its customers. Under the demonstration project, the covered organizations will have authority to hire individuals under a modified term appointment for a period of more than one year but not more than five years when the need for an employee's services is not permanent. These appointments may be extended one additional year, for a total of 6 years. The Executive Directors are authorized to extend term appointments. Employees hired under the modified term appointment authority are in a non-permanent status, but may be eligible for conversion to career-conditional or career appointments in the competitive service. To be converted, the employee must have (1) been selected for the term position under competitive procedures, with the announcement specifically stating that the individual(s) selected for the term position may be eligible for conversion to a career-conditional or career appointment at a later date; (2) served a minimum of two years of continuous service in the term position; and (3) be performing at the acceptable level of performance with a current rating of record of Mission Success or higher.
The purpose of extending the probationary period and trial period is to allow supervisors an adequate period of time to fully evaluate an employee's ability to complete a cycle of work and to fully assess an employee's contribution and conduct.
NAWCAD and NAWCWD will implement an extended initial probationary period for competitive service employees. The one-year probationary period will be extended to three years for newly appointed career-conditional, career employees and the one-year trial period will be extended to three years for newly appointed term employees to positions classified to series in the Science and Engineering, Business and Program Management, and Technical Specialist occupational families. For employees in positions classified to series in the S&E Technician and Administrative Support occupational families the one-year probationary period will be extended to two years for newly appointed career-conditional, career employees and the one-year trial period will be extended to two years for newly appointed term employees. The term newly appointed includes conversion to new appointments, including conversions from term appointments and the excepted service, for this purpose.
Employees who have completed an initial probationary or trial period prior to their conversion into the NAWC STRL will not be required to serve a new or extended initial probationary or trial period. Employees who are serving an initial probationary or trial period upon conversion into the NAWC's STRL will serve the time remaining on their initial probationary period or trial and may have their initial probationary or trial period extended in accordance with the demonstration project regulation and implementing issuances.
If a probationary or trial employee's performance is determined to be Mission Success or higher and the supervisor expects that the Mission Success or higher performance will continue into the future, the supervisor has the option of ending the probationary or trial period at an earlier date, but not before the employee has
Aside from extending the time period for all newly appointed career-conditional, career and term employees all other features of the initial probationary period as defined in 5 CFR part 315 and trial period as described in 5 CFR part 316 are retained including the potential to remove an employee without providing the full substantive and procedural rights afforded a non-probationary employee.
NAWCAD and NAWCWD will implement an extended initial trial period for excepted service employees who are appointed on a permanent or conditional basis or who are given a time-limited appointment lasting three or more years. The trial period will be three years for newly appointed excepted service employees to positions classified to series in the Science and Engineering, Business and Program Management, and Technical Specialist occupational families. For employees in positions classified to series in the S&E Technician and Administrative Support occupational families the trial period will be extended to two years for newly appointed excepted service employees. The term newly appointed includes conversion to new appointments for this purpose.
Employees who have completed an initial trial period prior to their conversion into the NAWC STRL will not be required to serve a new or extended initial trial period. Employees who are serving an initial trial period upon conversion into the NAWC's STRL will serve the time remaining on their initial trial period and may have their initial trial period extended in accordance with the demonstration project regulation and implementing issuances.
If a trial employee's performance is determined to be Mission Success or higher and the supervisor expects that the Mission Success or higher performance will continue into the future, prior to the end of the two- or three-year trial period, a supervisor has the option of ending the trial period at an earlier date, but not before the employee has completed one year of continuous service. If the trial period is terminated before the end of the two- or three-year period, the immediate supervisor will provide written reasons for his/her decision to the next level of supervision for concurrence prior to implementing the action.
Probationary employees may be terminated when they fail to demonstrate proper conduct, technical competency, and/or acceptable performance for continued employment, and for conditions arising before employment. When a supervisor decides to terminate an employee during the probationary period because his/her work performance or conduct is unacceptable, the supervisor shall terminate the employee's services by written notification stating the reasons for termination and the effective date of the action. The information in the notice shall, at a minimum, consist of the supervisor's conclusions as to the inadequacies of the employee's performance or conduct, or those conditions arising before employment that support the termination.
NAWCAD and NAWCWD will implement an extended supervisory probationary period. The probationary period for new supervisors will be two years. Except for the increased length, supervisory probationary periods will be made consistent with 5 CFR part 315. Employees who have successfully completed an initial probationary period for supervisory positions will not be required to complete an additional two-year probationary period for initial appointment to a supervisory position. Employees who are serving an initial supervisory probationary period upon conversion into the NAWC's STRL will serve the time remaining on their initial supervisory probationary period and may have their supervisory probationary period extended in accordance with the demonstration project regulation and implementing issuances. If, during this probationary period, the decision is made to return the employee to a non-supervisory position for reasons related to supervisory performance and/or conduct, the employee will be returned to a comparable position of no lower base pay than the position from which promoted or reassigned immediately prior to the supervisory assignment.
a. NAWCAD and NAWCWD will implement a Voluntary Emeritus Corps. Under the demonstration project, the Executive Directors of the covered organizations will have the authority to offer retired or separated employees voluntary positions. This authority may be delegated only to members of the Senior Executive Service (SES). Voluntary Emeritus Corps assignments are not considered employment by the Federal government except for purposes of injury compensation. Thus, such assignments do not affect an employee's entitlement to buyouts or severance payments based on an earlier separation from Federal service. To be accepted into the Volunteer Emeritus Corps, a volunteer must be recommended by a NAWCAD or NAWCWD manager to the NAWCAD or NAWCWD Executive Director or an SES member to whom this authority has been delegated. Not everyone who applies is entitled to an emeritus position. The responsible official will document acceptance or rejection of the applicant. For acceptance, documentation must be retained throughout the assignment. For rejection, documentation will be maintained for two years.
b. To ensure success and encourage participation, the volunteer's Federal retirement pay (whether military or civilian) will not be affected while serving in a voluntary capacity. Retired or separated Federal employees may accept an emeritus position without a break or mandatory waiting period. Voluntary Emeritus Corps volunteers will not be permitted to monitor contracts on behalf of the Government or to participate on any contracts or solicitations where a conflict of interest exists. The volunteers may be required to submit a financial disclosure form annually. The same rules that currently apply to source selection members will apply to volunteers. An agreement will be established among the volunteer, the responsible official, and the servicing HRO. The agreement must be finalized before the assumption of duties and shall include:
(1) A statement that the voluntary assignment does not constitute an appointment in the Civil Service is without compensation, and the volunteer waives any claims against the Government based on the voluntary assignment;
(2) A statement that the volunteer will be considered a Federal employee only for the purpose of injury compensation;
(3) The volunteer's work schedule;
(4) Length of agreement (defined by length of project or time defined by weeks, months, or years);
(5) Support provided by the organization (travel, administrative support, office space, and supplies);
(6) A statement of duties;
(7) A statement providing that no additional time will be added to a volunteer's service credit for such
(8) A provision allowing either party to void the agreement with two working days written notice;
(9) The level of security access required by the volunteer (any security clearance required by the position will be managed by the employing organization);
(10) A provision that any publication(s) resulting from his/her work will be submitted to the NAWCAD or NAWCWD Executive Director for review and approval;
(11) A statement that he/she accepts accountability for loss or damage to Government property occasioned by his/her negligence or willful action;
(12) A statement that his/her activities on the premises will conform to the regulations and requirements of the organization;
(13) A statement that he/she will not release any sensitive or proprietary information without the written approval of the employing organization and further agrees to execute additional non-disclosure agreements as appropriate, if required, by the nature of the anticipated services; and,
(14) A statement that he/she agrees to disclose any inventions made in the course of work performed at the NAWCAD or NAWCWD. The NAWCAD or NAWCWD Executive Director has the option to obtain title to any such invention on behalf of the U.S. Government. Should the NAWCAD or NAWCWD Executive Director elect not to take title, the NAWCAD or NAWCWD shall, at a minimum, retain a non-exclusive, irrevocable, paid-up, royalty-free license to practice or have practiced the invention worldwide on behalf of the U.S. Government.
Exceptions to the provisions in this procedure may be granted by the NAWCAD or NAWCWD Executive Director on a case-by-case basis.
The NAWCAD and NAWCWD Laboratories have an urgent need for direct hire authority to appoint qualified candidates possessing an advanced degree to permanent and temporary scientific and engineering positions. The market is extremely competitive with industry and academia for the small supply of highly-qualified and security clearable candidates with a Masters Degree or PhD in science or engineering. There are 35,000 scientists and engineers employed in the DoD laboratories; 27% hold Masters Degrees, while 10% are in possession of a PhD The NAWCAD and NAWCWD Laboratories jointly employ 5974 scientists and engineers; 29% holding Masters Degrees, while 4% are in possession of a PhD Over the next five years, the NAWCAD and NAWCWD Laboratories plan to hire approximately 2,240 of the country's best and brightest scientists and engineers (S&Es) just to keep pace with attrition. This number does not include the impact that several actions such as the Base Realignment and Closure of weapons and armament work to China Lake, California that will result in a need to hire additional scientists and engineers above normal attrition levels. Statistics indicate that the available pool of advanced degree, clearable candidates is substantially diminished by the number of non-U.S. citizens granted degrees by U.S. institutions. For instance, in 2006, 20% of Masters Degrees in science and over 35% of PhDs in science were awarded to temporary residents.
It is expected that this hiring authority, together with streamlined recruitment processes, will be very effective in hiring candidates possessing a PhD and accelerating the hiring process. For instance, under a similar authority found in the NDAA for FY 2009, section 1108 (Pub. L. 110-417), October 28, 2009, one STRL had fifteen PhD selectees in 2009 for the sixteen vacancies for which they were using this hiring authority. Another STRL, using this expedited hiring authority in calendar year 2009, made thirty firm hiring offers in an average of thirteen days from receipt of paper work in the Human Resources Office. Of these thirty selectees, twenty-three possessed PhDs.
This authority will be administered by the servicing Human Resources Office and Human Resources Service Center in accordance with the Department of Navy's common business processes, systems, and tools and be consistent with veterans' preference and merit system principles. Use of this appointing authority must comply with veterans' preference and merit systems principles when recruiting and appointing candidates with advanced degrees to covered occupations. Qualified candidates possessing an advanced degree may be appointed to both competitive and excepted service without regard to the provisions of subchapter 1 of chapter 33 of title 5, United States Code, other than sections 3303, 3321, and 3328 of such title.
The hiring threshold for this authority shall be consistent with DoD policy and legislative language as expressed in any National Defense Authorization Act addressing such.
When completing the personnel action, the following will be given as the authority for the Career-Conditional, Career, Term, Temporary, or special demonstration project appointment authority: Section 1108, NDAA for FY 09. Evaluation of this hiring authority will include information and data on its use such as numerical limitation, hires made, declinations, how many veterans hired, declinations, difficulties encountered, and/or recognized efficiencies.
(1) Scientific and engineering positions are defined as all professional positions in scientific and engineering occupations (with a positive education requirement) utilized by the laboratory.
(2) An advanced degree is a Master's or higher degree from an accredited college or university in a field of scientific or engineering study directly related to the duties of the position to be filled.
(3) Qualified candidates are defined as candidates who:
(a) Meet the minimum standards for the position as published in OPM's operating manual, “Qualification Standards for General Schedule Positions,” or the laboratory's demonstration project qualification standards specific to the position to be filled;
(b) Possess an advanced degree; and
(c) Meet any selective factors.
(4) The term “employee” is defined by Section 2105 of title 5, U.S.C.
Where Executive Orders or other regulations limit hiring non-citizens to the excepted service, both NAWCAD and NAWCWD will have the authority to approve the hiring of non-citizens into competitive service positions when qualified U.S. citizens are not available, and the candidate meets all applicable immigration and security requirements. If a non-citizen candidate is the only qualified candidate for the position, the candidate may be appointed. The selection is subject to approval by the NAWCAD and NAWCWD Executive Director/Commanding Officer or approving manager, as delegated by the appropriate Center Executive Director/Commanding Officer. This authority may only be delegated to members of the Senior Executive Service (SES).
Employees entering into the NAWC from non-STRL pay systems or from other Federal activities not as the result of a mass organizational conversion will be moved into the demonstration project in the career path and at the level and pay consistent with the duties and responsibilities of the STRL position and individual qualifications.
When an employee is permanently placed (except by conversion under section V.A or by promotion under section II.E.2) in an STRL position from a GS or FWS position through a management-directed action (except for actions taken for misconduct or unacceptable performance), including a management directed reassignment or realignment, or any placement as a result of a reduction in force (RIF), or placement via the Priority Placement Program (PPP), Reemployment Priority List (RPL), or Interagency Career Transition Assistance Plan (ICTAP), the employee will receive a WGI adjustment. The WGI adjustment is calculated based on the number of calendar days between the effective date of the employee's last equivalent increase and the date of conversion into NSPS, regardless of the number of days in a non-pay status (if any). The maximum adjustment may not exceed a full WGI.
An employee who enters into an STRL position from a GS or FWS position through an employee-initiated reassignment, promotion, or change to lower grade may, at the discretion of the authorized management official, also receive a WGI adjustment equivalent increase as described in the paragraph above. The decision to grant this increase will be reviewed and approved by an official who is at a higher level than the official who made the initial decision.
In either case, this increase occurs before any other discretionary reassignment increases provided under the STRL, may not cause the employee's base salary to exceed the maximum rate of the assigned pay band, and is in addition to any other discretionary reassignment increase the employee may be eligible to receive.
A promotion is the movement of an employee to a higher pay band in the same occupational family or to a higher pay band in a different occupational family. It also includes movement of an employee currently covered by a non-demonstration project personnel system to a demonstration project position in a pay band with a higher level of work. Positions with known promotion potential to a specific band within an occupational family will be identified when they are filled. Not all positions in an occupational family will have promotion potential to the same band. Movement from one occupational family to another will depend upon individual competencies, qualifications, and the needs of the organization. Supervisors may consider promoting qualified employees at any time, since promotions are not directly tied to the mission aligned objectives and compensation system. Progression within a pay band is based upon performance base pay increases; as such, these actions are not considered promotions and are not subject to the provisions of this section. Promotions will follow Merit System Principles and basic Federal merit promotion policy that provides for competitive and non-competitive promotions.
To be promoted competitively or non-competitively from one band to the next, an employee must meet the minimum qualifications for the job and have a current rating of record of Mission Success or better or equivalent under a different performance appraisal system. If an employee does not have a current performance rating, the employee will be treated the same as an employee with a rating of record of Mission Success as long as there is no documented evidence of less than acceptable performance.
Higher pay band or higher level of work means a pay band designated to be a higher level of work than an employee's currently assigned band, based on the demonstration classification structure and career progression patterns, either within or across varying pay schedules and career groups, regardless of the specific earning potential of the band. When moving from a non-demonstration position to a demonstration position, the band of the demonstration position is determined to be at a higher level of work than the grade or level of the non-demonstration position based on application of the demonstration classification structure and career progression patterns. Additional guidance will be included in NAWCAD/NAWCWD internal issuances.
A reassignment occurs when an employee moves, voluntarily or involuntarily, to a different position or set of duties within his/her pay band or to a position in a comparable pay band, or from a non-demonstration project position to a demonstration project position at a comparable level of work, on either a temporary or permanent basis. The employee must meet the qualifications requirements for the occupational family and pay band. When an employee is reassigned either within his/her current pay band or to a comparable pay band, an authorized management official will set pay at an amount no less than the employee's current base pay.
Comparable pay band or comparable level of work means pay bands with the equivalent level of work, based on the demonstration classification structure and career progression patterns, within and across varying pay schedules and career groups, regardless of the specific earning potential of the bands. When moving from a non-demonstration position to a demonstration position, the band of the demonstration position is determined to be at a comparable level of work to the grade or level of the non-demonstration position based on application of the demonstration classification structure and career progression patterns. Additional guidance will be included in NAWCAD/NAWCWD internal issuances.
A demotion is the placement of an employee into a lower pay band or movement from a non-demonstration project position to a demonstration project position at a lower level of work. Demotions may be for cause (performance or conduct) or for reasons other than cause (e.g., erosion of duties, reclassification of duties to a lower pay band, application under competitive announcements, at the employee's request, or placement actions resulting from RIF procedures).
Lower pay band or lower level of work means a pay band designated to be a lower level of work than an employee's currently assigned band, based on the demonstration classification structure and career progression patterns, either within or across varying pay schedules and career groups, regardless of the specific earning potential of the band. When moving from a non-demonstration position to a demonstration position, the band of the demonstration position is determined to be at a lower level of work than the grade or level of the non-demonstration position based on application of the demonstration classification structure and career progression patterns. Additional guidance will be included in NAWCAD/NAWCWD internal issuances.
Today's environment of downsizing and workforce fluctuations mandates that the organization have maximum flexibility to assign duties and responsibilities to individuals. Pay banding can be used to address this need, as it enables the organization to have maximum flexibility to assign an employee with or without a change in base pay, within broad descriptions, consistent with the needs of the organization and the individual's qualifications and level. Subsequent assignments to projects, tasks, or functions anywhere within the organization requiring the same level, area of expertise, and qualifications would not constitute an assignment outside the scope or coverage of the current position description. For instance, a technical expert could be assigned to any project, task, or function requiring similar technical expertise. Likewise, a manager could be assigned to manage any similar function or organization consistent with that individual's qualifications. This flexibility allows broader latitude in assignments and further streamlines the administrative process and system.
NAWCAD and NAWCWD will implement an Expanded Detail and Temporary Promotion Authority providing the authority (1) to effect details up to one year to specified positions at the same or similar level; and (2) to effect details or temporary promotions to a higher pay band position up to one year within a 24-month period without competition. The specifics of these authorities will be stipulated by local business rules, policies, or procedures as organizational experience dictates.
The following actions are exceptions to competitive procedures:
a. Re-promotion to a position which is in the same pay band or GS equivalent and occupational family as the employee previously held on a permanent basis within the competitive service.
b. Promotion, reassignment, demotion, transfer, or reinstatement to a position having promotion potential no greater than the potential of a position an employee currently holds or previously held on a permanent basis in the competitive service.
c. A position change permitted by reduction-in-force procedures.
d. Promotion without current competition when the employee was appointed through competitive procedures to a position with a documented target level.
e. A temporary promotion, or detail to a position in a higher pay band, up to one year in a 24-month period.
f. A promotion due to the reclassification of positions based on accretion (addition) of duties.
g. A promotion resulting from the correction of an initial classification error or the issuance of a new classification standard.
h. Consideration of a candidate who did not receive proper consideration in a competitive promotion action.
Additional guidance will be included in NAWCAD/NAWCWD internal issuances.
Pay administration policies will be established by the Personnel Management Board. These policies will be exempt from DON pay setting policies, but will conform to basic governmental pay setting policy except for flexibilities contained herein. Employees whose performance is acceptable will receive the full annual general pay increase and the full locality pay. The covered organizations may make full use of recruitment, retention, and relocation incentive payments as provided for by OPM. Pay retention will follow current law and regulations at 5 U.S.C. 5362 and 5363 and 5 CFR part 536, except as described in this regulation and waived or modified in section IX, the waiver section of this plan. Pay band retention will not be used in this demonstration project.
Employees with a performance rating of Partial Mission Success or better will be entitled to the locality pay authorized for their official duty station in accordance with 5 CFR 531 subpart F. Employees with a performance rating of Unacceptable will be entitled to only the locality pay increase; they cannot receive any other pay increase or award. In addition, the locality-adjusted pay of any employee may not exceed the rate for Executive Level IV. Geographic movement within the demonstration project will result in the employee's locality pay being recomputed using the newly applicable locality pay percentage, which may result in a higher or lower locality pay and, thus, a higher or lower adjusted base pay.
An employee's total monetary compensation paid in a calendar year may not exceed the base pay of Level I of the Executive Schedule consistent with 5 U.S.C. 5307 and 5 CFR part 530 subpart B. In addition, each pay band will have its own pay ceiling, just as grades do in the GS. Base pay rates for the various pay bands will be directly keyed to the GS rates, except for the Pay Band VI of the Supervision and Management pay schedule. Other than where a retained rate applies, base pay will be limited to the maximum base pay payable for each pay band.
Employees whose appointment to a demonstration project position is their initial appointment to the Federal service may have pay set at the lowest base pay in the band or anywhere within the band consistent with the special qualifications of the individual and the unique requirements of the position. These special qualifications may be in the form of education, training, experience, or any combination thereof that is pertinent to the position in which the employee is being placed. Both national and local labor market conditions and pay rates may also be taken into consideration to ensure that the Warfare Centers are able to compete for the talent, skills, abilities, and competencies needed to enable them to remain on the cutting edge of science and technology. Guidance on pay setting for new hires will be established by the Personnel Management Board. Highest Previous Rate (HPR) will be considered in placement actions authorized under rules similar to the HPR rules in 5 CFR 531.221. Use of HPR will be at the supervisor's discretion, but if used, HPR is subject to policies established by the Personnel Management Board.
The minimum base pay increase upon promotion to a higher pay band will be 6% or the minimum base pay rate of the new pay band, whichever is greater. The maximum amount of the pay increase may not exceed 20%, or other such amount as established by the Personnel Management Board. The maximum base pay increase for promotion may be exceeded when necessary to allow for the minimum base pay increase. For employees covered by a staffing supplement, the demonstration extended base pay is considered base pay for promotion calculations. When a temporary promotion is terminated, the employee's pay entitlements will be re-determined based on the employee's position of record, with appropriate adjustments to reflect pay events during the temporary promotion, subject to the
a. Covered organizations may choose to adopt the flexibility to pay an increase in base pay upon reassignment. If adopted, such an increase will be subject to the specific guidelines established by the Personnel Management Board and will not exceed 5% as a cost containment measure. A reassignment may be effected without a change in base pay. Employees may be eligible for an increase to base pay upon temporary or permanent reassignment as described in section III.E.3. A decision to increase an employee's base pay under this section will be based upon clear Personnel Management Board business rules that will define criteria necessary to justify a pay increase.
Examples of criteria may include, but are not limited to, one or more of the following factors:
(1) A determination that an employee's responsibilities will significantly increase;
(2) Critical mission or business requirements;
(3) Need to advance multi-functional competencies;
(4) Labor market conditions, e.g., availability of candidates and labor market rates;
(5) Reassignment from a nonsupervisory to a supervisory position;
(6) Employee's past and anticipated performance and contribution;
(7) Physical location of position;
(8) Specialized skills, knowledge, or education possessed by the employee in relation to those required by the position; and
(9) Base pay of other employees in the organization performing similar work.
b. When an employee is reassigned within his/her current pay band or to a comparable pay band, an authorized management official will set pay at an amount no less than the employee's current base pay and may increase the employee's current base pay by up to and including 5%. If the employee's current base pay exceeds the maximum of the new pay band, no increase can be provided. There is no limit to the number of times an employee can be reassigned, but local business rules will be established to monitor and control all cases that receive reassignment base pay changes to ensure fairness and consistency across the workforce.
Employees demoted for cause (performance or conduct) are not entitled to pay retention and will receive a minimum of a 5% decrease in base pay or the minimum rate of the lower pay band whichever is greater. Employees demoted for reasons other than cause (
Employees, who receive an unacceptable rating, do not receive performance payouts or the general pay increase. This action may result in base pay that is identified in a lower pay band. This occurs because the minimum rate of base pay in a pay band increases as the result of the general pay increase (5 U.S.C. 5303) while the employee's pay does not change. The employee will be placed in the lower pay band and their salary will remain unchanged. This situation (a reduction-in-band level with no reduction in pay as a result of an unacceptable rating) will not be considered an adverse performance based action.
At the time of conversion or OPM approval of a new SSR that would be applicable to covered employees, the NAWCAD and NAWCWD may incorporate the use of special salary rates (SSR) in demonstration project pay ranges. Currently there are no NSPS Targeted Local Market Supplements in use by NAWCAD or NAWCWD so no employees converting from NSPS will be affected if staffing supplements are not implemented at conversion. If staffing supplements are adopted, either at the time of conversion or later, NAWCAD and NAWCWD will implement them via an extension to the demonstration pay ranges and a supplement to a covered employee's salary. Employees assigned to occupational categories and geographic areas where GS SSRs apply may be entitled to a staffing supplement if the maximum adjusted base pay rate for the demonstration band to which the employee is assigned is exceeded by a GS special rate for the employee's occupational category and geographic area. The Personnel Management Board may establish additional policies and provide guidance on the use and application of the staffing supplement including provisions for in band adjustments and limiting application of this feature to fewer occupations than covered by the GS SSR. An extension to the demonstration pay ranges will be used to extend the maximum salary of the pay band for those occupations for which a staffing supplement is approved. The increase of an employee's base pay into this extension will be determined by the annual performance assessment and payout, there is no automatic entitlement to a staffing supplement. Only if an employee's annual assessment and associated payout would cause their base pay to fall within the area of the staffing supplement extension to the pay range for the pay band would they be paid at this level.
The extension to the pay range will be the maximum special salary rate for the banded grades. An employee's base pay is increased by the standard locality increase until the base pay exceeds the maximum GS basic pay for the banded grades. If the employee's base pay will exceed the maximum GS basic pay for the banded grades then the staffing supplement will be applied when authorized. The staffing supplement percent will be set equal to the locality percent and the staffing supplement and payout is calculated as shown in the following example.
If the pay scale extension is discontinued or reduced either because the GS SSR has been discontinued or reduced, for NAWC budgetary constraints, or other NAWC managerial decisions, the employees receiving a staffing supplement will receive retained pay. There will be no change in the adjusted base pay when placed on pay retention.
NAWCAD and NAWCWD will establish an educational base pay adjustment which is separate from the incentive pay process and may not cause the employee's pay to exceed the maximum base pay rate of his or her assigned pay band. An educational pay adjustment is defined as an increase in an employee's base pay by other than the incentive pay process within the employee's current band level to an amount which does not exceed the top of the band. The educational pay adjustment may be used to adjust the pay of individuals who have acquired a level of mission-related education that would otherwise make the employee qualified for an appointment at a higher level and would be used in lieu of a new appointment. For example, this authority may be used to adjust the pay of graduate level Student Career Experience Program (SCEP) students or employees who have obtained an advanced degree, e.g., a PhD in a field related to the work of their position or the mission of their organization. An employee may receive an educational base pay adjustment or a reassignment base pay increase but not both at the same time.
NAWCAD and NAWCWD will employ developmental promotions to achieve compensation growth commensurate to an employee's progression while in developmental assignments. A developmental promotion is an increase to base pay that may be provided to employees participating in NAWCAD and NAWCWD training programs or in other developmental capacities as determined by Personnel Management Board policy. Developmental promotions recognize growth and development in the acquisition of job related competencies combined with successful performance of job objectives. The use of developmental promotions is limited to (1) employees in a developmental pay band of a non-supervisory pay schedule and who are in developmental or trainee level positions; and (2) employees in positions which are assigned to a Student Career Experience Program (SCEP).
Standards by which developmental promotion increases are provided and criteria by which additional base pay increases will be determined will be established and documented in internal business rules, policies, or procedures. The amount of the developmental promotion increase generally will not exceed 20 percent of an employee's base pay The decision to grant a developmental promotion exceeding 20 percent of an employee's base pay must be made on a case-by-case basis and approved by the appropriate Executive Director/Commanding Officer or their delegate as established by internal business rules, policies, or procedures. This authority may be delegated only to members of the Senior Executive Service (SES). The amount of the developmental promotion increase may not cause the employee's base pay to exceed the top of the employee's pay band or that set by internal business rule, policy, or procedure. To qualify for a developmental promotion, an employee must have a rating of record of Mission Success or better. A developmental promotion may be awarded to an employee who does not have a rating of record if an authorizing official conducts a performance assessment and determines that the employee is performing at the Mission Success level or better. This performance assessment does not constitute a rating of record. If an employee has a current performance rating below Mission Success and the supervisor believes the employee's performance has improved to the Mission Success level or better; the employee has demonstrated this improved performance for 90 days or more; and it is expected that this level of performance will continue, the supervisor may conduct a performance assessment and forward it to the Pay Pool Manager for approval. If the Pay Pool Manager concurs with the supervisor's assessment then the employee may be given a developmental promotion. There is no entitlement to an additional assessment beyond the annual assessment; this decision is totally at managerial discretion. If an additional assessment is made, it is not a rating of record and there will be no retroactive pay changes associated with it.
A developmental promotion increase may not be granted unless an employee is in a pay and duty status under the NAWCAD/NAWCWD STRL demonstration project on the effective date of the increase.
Pay retention will follow current law and regulations at 5 U.S.C. 5362 and 5363, and 5 CFR part 536, except as waived or modified in the Staffing Supplements section and section IX of this plan. Pay band (grade) retention does not apply under this demonstration project. The NACWAD or NAWCWD Executive Director may also grant pay retention to employees who meet general eligibility requirements, but do not have specific entitlement by law, provided they are not specifically excluded.
The Expanded Developmental Opportunity Program will be available to all demonstration project employees. Expanded developmental opportunities complement existing developmental opportunities such as long-term training, rotational job assignments, and developmental assignments to DON/DoD, and self-directed study via correspondence courses and local colleges and universities. Each developmental opportunity must result in a product, service, report, or study that will benefit the NAWCAD or NAWCWD or customer organization as well as increase the employee's individual effectiveness. The developmental opportunity period will not result in loss of (or reduction) in base pay, leave to which the employee is otherwise entitled, or credit for service time. The positions of employees on expanded developmental opportunities may be back-filled (
The Executive Directors of the covered organizations have the
One paid sabbatical of up to twelve months in duration or one unpaid sabbatical of up to six months in a calendar year may be granted to an employee in any seven-year period. Employees will be eligible to request a sabbatical after completion of seven years of Federal service. Employees approved for a paid sabbatical must sign a service obligation agreement to continue in service in the covered organizations for a period of three times the length of the sabbatical. If an employee voluntarily leaves the covered organizations before the service obligation is completed he/she is liable for repayment of expenses incurred by the covered organizations that are associated with training during the sabbatical. Expenses do not include salary costs. The Executive Directors of the covered organizations have the authority to waive this requirement. Criteria for such waivers will be addressed in the operating procedures. Specific procedures will be developed for processing sabbatical applications upon implementation of the demonstration project.
The Executive Directors of the covered organizations have the authority to approve academic degree training consistent with 5 U.S.C. 4107. Training is an essential component of an organization that requires continuous acquisition of advanced and specialized knowledge. Degree training is also a critical tool for recruiting and retaining employees with or acquiring critical skills. Academic degree training will ensure continuous acquisition of advanced specialized knowledge essential to the organization and ability to recruit and retain personnel critical to the present and future requirements of the organization. Degree or certificate payment may not be authorized where it would result in a tax liability for the employee without the employee's express and written consent. Any variance from this policy must be rigorously determined and documented. Guidelines will be developed to ensure competitive approval of degree or certificate payment and that those decisions are fully documented. Employees approved for degree training must sign a service obligation agreement to continue in service in the covered organizations for a period of three times the length of the training period. If an employee voluntarily leaves the NAWCAD or NAWCWD before the service obligation is completed, he/she is liable for repayment of expenses incurred by the covered organizations related to the critical skills training. Expenses do not include salary costs. The Executive Directors of the covered organizations have the authority to waive this requirement. Criteria for such waivers will be addressed in the STRL internal operating procedures.
RIF procedures will be used when an employee faces separation or downgrading due to lack of work, shortage of funds, reorganization, insufficient personnel ceiling, the exercise of re-employment or restoration rights, or furlough for more than 30 calendar days or more than 22 discontinuous days. The procedures in 5 CFR part 351 will generally be followed with some modifications pertaining to the competitive areas, assignment rights, the addition of a performance sub-group and grade/pay band retention. Modified term appointment employees are in Tenure Group III for RIF purposes. RIF procedures are not required when separating these employees when their appointments expire.
Separate RIF competitive areas for demonstration and non-demonstration project employees will be established at each geographic location. Within the demonstration project separate competitive areas may be established for each demonstration occupational family. Demonstration supervisors will be placed in the competitive area for their occupational family but in separate competitive levels within that career field. Bumps and retreats will occur only within the same competitive area and only to positions for which the employee meets all qualification standards including medical and/or physical qualifications.
Within each competitive area, competitive levels will be established based on the occupational family, pay band, series and SAC so that positions are similar enough in duties and qualifications that employees can perform the duties and responsibilities of any other position in the competitive level upon assignment to it, without any loss of productivity beyond what is normally expected. For S&E competitive levels the Warfare Centers may also choose to use the OPM classification functional code as a defining element.
An employee may displace another employee by bump or retreat to one pay band below the employee's existing pay band. A preference eligible with a compensable service-connected disability of 30 percent or more may retreat to positions two pay bands below his/her current band.
Reductions in force are accomplished using the existing procedures with the retention factors of: Tenure, veterans' preference, performance, and length of service, in that order. The performance subgroup will be based on the most recent three ratings of record during the preceding four years. There will be three groupings within the performance subgroup: Mission Superior (H), Mission Success (S) and Mission Deficiency (L). The most recent ratings of records will be combined to determine the performance subgroup. The High subgroup will include those employees who have consistently demonstrated superior performance. The Mission Success subgroup will include the next level of demonstrated performance and the Mission Deficiency subgroup will include those who have failed to achieve expected levels of performance for one or more years. Additional guidance on determining performance subgroups will be included in NAWCAD/NAWCWD internal issuances.
Employees who have been rated under different patterns of summary rating levels and have at least the equivalent of a rating of record of three will receive RIF appraisal credit for the non-demonstration performance ratings equivalent to Mission Success based on the demonstration project's modal score for the employee's competitive area. If the employee received less than the equivalent of Mission Success then that rating will be compared to the demonstration project one or two rating and best fit chosen. Additional guidance on ratings equivalency will be included in NAWCAD/NAWCWD internal issuances.
In some cases, an employee may not have three ratings of record. If an
An employee who has received a written decision that his/her performance is unacceptable has no bump or retreat rights. An employee who has been demoted for unacceptable performance, and as of the date of the issuance of the RIF notice has not received a performance rating in the position to which demoted, will receive the same credit granted for a Level 3 rating of record. An employee with a current unacceptable rating of record has assignment rights only to a position held by another employee who has an unacceptable rating of record.
Critical to the success of the demonstration project is the training developed to promote understanding of the broad concepts and finer details needed to implement and successfully execute this project. A new pay banding schema and performance management system both represent significant cultural change to the organization. Training will be tailored to address employee concerns and encourage comprehensive understanding of the demonstration project. Training will be required both prior to implementation and at various times during the life of the demonstration project. A training program will begin prior to implementation and will include modules tailored for employees, supervisors, senior managers, and administrative staff. Typical modules are:
1. An overview of the demonstration project personnel system;
2. How employees are converted into and out of the system;
3. Pay banding;
4. The mission aligned objectives and compensation system;
5. Defining mission aligned performance objectives;
6. How weights may be used with the mission aligned performance objectives;
7. Assessing performance—giving feedback;
8. New position descriptions; and
9. Demonstration project administration and formal evaluation.
Various types of training are being considered including videos, on-line tutorials, and train-the-trainer concepts.
The employee's NSPS occupational series, pay plan, pay band, and supervisory code will be considered upon converting into the demonstration project as follows:
a. Determine the appropriate demonstration project pay plan. Employees will be converted into a pay plan based on the occupational series of their position. There is a separate pay plan for supervisors; conversion to that pay plan will be without regard to the occupational series. In cases where the employee is assigned to a NSPS-unique occupational series, a corresponding OPM occupational series must be identified using OPM GS classification standards and guidance to determine the proper demonstration project pay plan.
b. Determine the appropriate pay band. The appropriate pay band will be determined by establishing the corresponding demonstration project pay band for the employee's NSPS position using demonstration project pay band definitions, classification standards, and guidance. Once the demonstration project pay band has been determined, the employee's position will be placed in the demonstration project pay band. In cases where a demonstration project pay band overlaps more than one NSPS pay band, placement will be made using demonstration project pay band definitions and classification criteria to determine the appropriate pay band in which to place the position.
Conversion from NSPS into the demonstration project will be accomplished with full employee pay protection. Adverse action provisions will not apply to the conversion action. In accordance with section 1113(c)(1) of NDAA 2010, which prohibits a loss of or decrease in pay upon transition from NSPS, employees converting to the demonstration project will retain the adjusted salary (as defined in 5 CFR 9901.304) from their NSPS permanent position at the time the position converts. Upon conversion, the retained NSPS adjusted salary may not exceed Level IV of the Executive Schedule plus 5 percent. If the employee's base pay exceeds the maximum rate for his or her assigned demonstration project pay band, the employee will be placed on indefinite pay retention until an event, as described in 5 CFR 536.308, results in a loss of eligibility for or termination of pay retention. Increases to the retained rate after conversion will be in accordance with applicable regulations; however, for any NSPS employee whose retained rate exceeds EX-IV upon conversion, any adjustment to the retained rate in accordance with applicable pay retention regulations may not cause the employee's adjusted pay to exceed EX-IV plus 5 percent.
NAWCAD and NAWCWD do not have any employees who are covered by an NSPS targeted local market supplement (TLMS) but if such coverage occurs between the date of this FRN and conversion to the demonstration project such employees will no longer be covered by a TLMS. Instead they may receive a locality or similar supplement (
Once converted, employees may receive other adjustments and/or differentials, as applicable, as described in this regulation or an implementing issuance.
Since FLSA provisions were not waived under NSPS and duties do not change upon conversion to the demonstration project, the FLSA status determination will remain the same upon conversion. Employees will be converted to the demonstration project with the same FLSA status they had under NSPS.
During the first the 12 months following conversion to the demonstration project, management may approve certain adjustments within the pay band for pay equity reasons stemming from conversion. For example, if an employee would have been otherwise promoted but demonstration project pay band placement no longer merits promotion, a pay equity adjustment may be authorized provided the adjustment does not cause the employee's base pay to exceed the maximum rate of his or her assigned pay band and the employee's performance warrants an adjustment. The decision to grant a pay equity adjustment is at the sole discretion of management and is not subject to employee appeal procedures.
During the first 18 months following conversion, management may approve promotions of less than 6% or increases in base pay of not more than 20% percent provided the adjustment does not cause the employee's base pay to exceed the maximum rate of his or her assigned pay band. The employee's performance must warrant an adjustment and these actions will be limited to those necessary to mitigate compensation inequities that are directly related to the transition/conversion from NSPS to the demonstration project. For instance, inappropriate “leap-frogging” of more senior employees by more junior employees when the inversion of compensation levels are not warranted by performance or mission accomplishment outcomes. The Personnel Management Board will establish policy and guidance for this provision and this guidance will be included in NAWCAD/NAWCWD internal issuances.
a. Employees serving under term appointments at the time of conversion to the demonstration project will be converted to a modified term appointment provided they were hired for their current positions under competitive procedures. These employees will be eligible for conversion to career or career-conditional appointments in the competitive service provided they:
(1) have served two years of continuous service in the term position;
(2) were selected for the term position under competitive procedures; and
(3) are performing at a NSPS Valued Performer, demonstration Mission Success, or equivalent level under another system. Additional guidance will be included in NAWCAD/NAWCWD internal conversion issuances.
Converted term employees who do not meet these criteria may continue on their term appointment up to the not-to-exceed date established under NSPS. Extensions of term appointments for employees who do not meet the above criteria may be granted after conversion in accordance with the provision of this regulation.
b. Employees serving under temporary appointments under NSPS when their organization converts to the demonstration project will be converted and may continue on their temporary appointment up to the not-to-exceed date established under NSPS. Extensions of temporary appointments after conversion may be granted in accordance with 5 CFR 213.104 for excepted service employees and 5 CFR part 316, subpart D, for competitive service employees.
a. Initial probationary period. Employees who have completed an initial probationary period prior to conversion from NSPS will not be required to serve a new or extended initial probationary period. Employees who are serving an initial probationary period upon conversion from NSPS will serve the time remaining on their initial probationary period and may have their initial probationary period extended in accordance with the demonstration project regulation and implementing issuances.
b. Supervisory probationary period. NSPS employees who have completed a supervisory probationary period prior to conversion from NSPS will not be required to serve a new or extended supervisory probationary period. NSPS employees who are serving a supervisory probationary period upon conversion from NSPS will serve the time remaining on their supervisory probationary period.
Employees who enter this demonstration project from other personnel systems (e.g., Defense Civilian Intelligence Personnel System, DoD Civilian Acquisition Workforce Demonstration Project, or other STRLs) due to a reorganization, mandatory conversion, Base Closure and Realignment Commission decision, or other directed action will be converted into the NAVAIR STRL demonstration project via movement of their positions using an appropriate Nature of Action Code. Employees' positions will be classified based upon the position classification criteria and pay band definitions under the laboratory demonstration project rules and their pay, upon conversion, maintained under applicable pay setting rules.
In the event employees' coverage under the NAVAIR STRL demonstration project pay plans is terminated, employees move with their demonstration project positions to another system applicable to NAVAIR STRL employees. The grade of their demonstration project position in the new system will be based upon the position classification criteria of the gaining system. Employees when converted to their positions classified under the new system will be eligible for pay retention under 5 CFR part 536, if applicable.
a. If a demonstration project employee is moving to a GS or other pay system position, the following procedures will be used to translate the employee's project pay band to a GS-equivalent grade and the employee's project base pay to the GS-equivalent rate of pay for pay setting purposes. The equivalent GS grade and GS rate of pay must be determined before movement out of the demonstration project and any accompanying geographic movement, promotion, or other simultaneous action. For lateral reassignments, the equivalent GS grade and rate will become the employee's converted GS grade and rate after leaving the demonstration project (before any other action). For transfers, promotions, and other actions, the converted GS grade and rate will be used in applying any GS pay administration rules applicable in connection with the employee's movement out of the project (
An employee in a pay band corresponding to a single GS grade is provided that grade as the GS-equivalent grade. An employee in a pay band corresponding to two or more grades is determined to have a GS-equivalent grade corresponding to one of those grades according to the following rules:
(1) The employee's adjusted base pay under the demonstration project (including any locality payment or staffing supplement) is compared with step 4 rates in the highest applicable GS rate range. For this purpose, a GS rate range includes a rate in:
(a) the GS base schedule;
(b) the locality rate schedule for the locality pay area in which the position is located; or
(c) the appropriate special rate schedule for the employee's occupational series, as applicable.
(2) If the employee's adjusted base pay under the demonstration project equals or exceeds the applicable step 4 adjusted base pay rate of the highest GS grade in the band, the employee is converted to that grade.
(3) If the employee's adjusted base pay under the demonstration project is lower than the applicable step 4 adjusted base pay rate of the highest grade, the adjusted base pay under the demonstration project is compared with the step 4 adjusted base pay rate of the second highest grade in the employee's pay band. If the employee's adjusted base pay under the demonstration project equals or exceeds the step 4 adjusted base pay rate of the second highest grade, the employee is converted to that grade.
(4) This process is repeated for each successively lower grade in the band until a grade is found in which the employee's adjusted base pay under the demonstration project rate equals or exceeds the applicable step 4 adjusted base pay rate of the grade. The employee is then converted at that grade. If the employee's adjusted base pay is below the step 4 adjusted base pay rate of the lowest grade in the band, the employee is converted to the lowest grade.
(5) Exception: An employee will not be provided a lower grade than the grade held by the employee immediately preceding a conversion, lateral reassignment, or lateral transfer into the project, unless since that time the employee has either undergone a reduction in band or a reduction within the same pay band due to unacceptable performance.
An employee's pay within the converted GS grade is set by converting the employee's demonstration project rates of pay to GS rates of pay in accordance with the following rules:
(1) The pay conversion is done before any geographic movement or other pay-related action that coincides with the employee's movement or conversion out of the demonstration project.
(2) An employee's adjusted base pay under the demonstration project (i.e., including any locality payment or staffing supplement) is converted to a GS adjusted base pay rate on the highest applicable GS rate range for the converted GS grade. For this purpose, a GS rate range includes a rate range in:
(a) the GS base schedule,
(b) an applicable locality rate schedule, or
(c) an applicable special rate schedule.
(3) If the highest applicable GS rate range is a locality pay rate range, the employee's adjusted base pay under the demonstration project is converted to a GS locality rate of pay. If this rate falls between two steps in the locality-adjusted schedule, the rate must be set at the higher step. The converted GS unadjusted rate of base pay would be the GS base rate corresponding to the converted GS locality rate (i.e., same step position).
(4) If the highest applicable GS rate range is a special rate range, the employee's adjusted base pay under the demonstration project is converted to a special rate. If this rate falls between two steps in the special rate schedule, the rate must be set at the higher step. The converted GS unadjusted rate of base pay will be the GS rate corresponding to the converted special rate (i.e., same step position).
(d) Employees with Pay Retention: If an employee is receiving a retained rate under the demonstration project, the employee's GS-equivalent grade is the highest grade encompassed in his or her pay band level. Demonstration project operating procedures will outline the methodology for determining the GS-equivalent pay rate for an employee retaining a rate under the demonstration project.
The Above GS-15 Position concept is currently being evaluated by DoD management for its effectiveness; continued applicability to the current STRL scientific, engineering, and technology workforce needs; and appropriate allocation of billets based on mission requirements. The nature and extent of the conversion out of the demonstration project process for employees in these positions will be determined by the final DoD guidance. Additional guidance may be included in NAWCAD/NAWCWD internal issuances.
If an employee is receiving a retained rate under the demonstration project, the employee's GS-equivalent grade is the highest grade encompassed in his or her pay band level. Demonstration project operating procedures will outline the methodology for determining the GS-equivalent pay rate for an employee retaining a rate under the demonstration project.
Service under the demonstration project is creditable for within-grade increase purposes upon conversion back to the GS pay system. Performance pay increases (including a zero increase) under the demonstration project are equivalent increases for the purpose of determining the commencement of a within-grade increase waiting period under 5 CFR 531.405(b).
All personnel laws, regulations, and guidelines not waived by this plan will remain in effect. Basic employee rights will be safeguarded and Merit System Principles will be maintained. Servicing HRSCs will continue to process personnel-related actions and provide other appropriate services.
One of the major goals of the demonstration project is to streamline the personnel processes to increase cost effectiveness. Automation must play an integral role in achieving that goal. Without the necessary automation to support the interventions proposed for the demonstration project, optimal cost benefit cannot be realized. In addition, adequate information to support decision-making must be available to managers if line management is to assume greater authority and responsibility for human resources management. Automation to support the demonstration project is required at the DON and DoD level, (in the form of changes to the Defense Civilian Personnel Data System) to facilitate processing and reporting of demonstration project personnel actions, and may be ultimately required by the Naval Air Warfare Centers to assist in processing of a variety of personnel-related actions in order to facilitate management processes and decision-making.
DCPDS is the Department of Defense's authoritative personnel data system and program of record and, as such, will be the system of choice for the STRL labs.
Many aspects of a demonstration project are experimental. Modifications may be made from time to time as experience is gained, results are analyzed, and conclusions are reached on how the new system is working. DoDI 1400.37, July 28, 2009, provides
Public Law 103-337 removed any mandatory expiration date for this demonstration. The covered organizations, DON and DoD will ensure this project is evaluated for the first five years after implementation in accordance with 5 U.S.C. 4703. Modifications to the original evaluation plan or any new evaluation will ensure the project is evaluated for its effectiveness, its impact on mission, and any potential adverse impact on any employee groups. Major changes and modifications to the interventions would be made if formative evaluation data warranted and will be published in the
Chapter 47 of 5 U.S.C. requires that an evaluation be performed to measure the effectiveness of the demonstration project and its impact on improving public management. A comprehensive evaluation plan for the entire demonstration program, originally covering 24 DoD laboratories, was developed by a joint OPM/DoD Evaluation Committee in 1995. This plan was submitted to the Office of Defense Research & Engineering and was subsequently approved. The main purpose of the evaluation is to determine whether the waivers granted result in a more effective personnel system and improvements in ultimate outcomes (
Appendix C shows an intervention model for the evaluation of the demonstration project. The model is designated to evaluate two levels of organizational performance: Intermediate and ultimate outcomes. The intermediate outcomes are defined as the results from specific personnel system changes and the associated waivers of law and regulation expected to improve human resource (HR) management (
Organizational performance measures established by the organization will be used to evaluate the impact of a new HR system on the ultimate outcomes. The evaluation of the new HR system for any given organization will take into account the influence of three factors on organizational performance: Context, degree of implementation, and support of implementation. The context factor refers to the impact which intervening variables (
(1) HR changes are given a fair trial period;
(2) Changes are implemented; and
(3) Changes conform to the HR interventions as planned.
The degree to which the project is implemented and operated will be tracked to ensure that the evaluation results reflect the project as it was intended. Data will be collected to measure changes in both intermediate and ultimate outcomes, as well as any unintended outcomes, which may happen as a result of any organizational change. In addition, the evaluation will track the impact of the project and its interventions on veterans and other protected groups, the Merit Systems Principles, and the Prohibited Personnel Practices. Additional measures may be added to the model in the event that changes or modifications are made to the demonstration plan.
The intervention model at Appendix C will be used to measure the effectiveness of the personnel system interventions implemented. The intervention model specifies each personnel system change or “intervention” that will be measured and shows:
(1) The expected effects of the intervention,
(2) The corresponding measures, and
(3) The data sources for obtaining the measures.
Although the model makes predictions about the outcomes of specific interventions, causal attributions about the full impact of specific interventions will not always be possible for several reasons. For example, many of the initiatives are expected to interact with each other and contribute to the same outcomes. In addition, the impact of changes in the HR system may be mitigated by context variables (
A modified quasi-experimental design will be used for the evaluation of the STRL Personnel Demonstration Program. Because most of the eligible laboratories are participating in the program, a title 5 U.S.C. comparison group will be compiled from the Central Personnel Data File (CPDF). This comparison group will consist of workforce data from Government-wide research organizations in civilian Federal agencies with missions and job series matching those in the DoD laboratories. This comparison group will be used primarily in the analysis of pay banding costs and turnover rates.
Data from several sources will be used in the evaluation. Information from existing management information systems and from personnel office records will be supplemented with perceptual survey data from employees to assess the effectiveness and perception of the project. The multiple sources of data collection will provide a more complete picture as to how the interventions are working. The information gathered from one source will serve to validate information obtained through another source. In so doing, the confidence of overall findings will be strengthened as the different collection methods substantiate each other.
Both quantitative and qualitative data will be used when evaluating outcomes. The following data will be collected:
(1) Workforce data;
(2) Personnel office data;
(3) Employee attitude surveys;
(4) Focus group data;
(5) Local site historian logs and implementation information;
(6) Customer satisfaction surveys; and
(7) Core measures of organizational performance.
The evaluation effort will consist of two phases, formative and summative
An objective of the demonstration project is to ensure in-house cost discipline. A baseline will be established at the start of the project and salary expenditures will be tracked yearly. Implementation costs (including project development, automation costs, and evaluation costs) are considered one-time costs and will not be included in the cost discipline. The Personnel Management Board will track personnel cost changes and recommend adjustments if required to achieve the objective of cost discipline.
Costs associated with the development of the personnel demonstration project include software automation, training, and project evaluation. All funding will be provided through the organization's budget. The projected annual expenses are summarized in Table 1. Project evaluation costs are not expected to continue beyond the first five years unless the results warrant further evaluation.
Public Law 106-398 gave the DoD the authority to experiment with several personnel management innovations. In addition to the authorities granted by the law, the following are waivers of law and regulation that will be necessary for implementation of the demonstration project. In due course, additional laws and regulations may be identified for waiver request. The following waivers and adaptations of certain title 5 U.S.C. and title 5 CFR provisions are required only to the extent that these statutory provisions limit or are inconsistent with the actions contemplated under this demonstration project. Nothing in this plan is intended to preclude the demonstration project from adopting or incorporating any law or regulation enacted, adopted, or amended after the effective date of this demonstration project.
Chapter 5, section 552a: Records. Waive to the extent required to clarify that volunteers under the Voluntary Emeritus Corps are considered employees of the Federal Government for purposes of this section.
Chapter 31, section 3111: Acceptance of volunteer service. Waive to allow for a Volunteer Emeritus Corps in addition to student volunteers.
Chapter 33, subchapter I—Examination, Certification, and Appointment: Waived except for sections 3302, 3321, and 3328to allow for direct hire authority for scientists and engineers with advanced degrees for professional positions.
Chapter 33, section 3317(a): Competitive service, certification from register (in so far as “rule of three” is eliminated under the demonstration project).
Chapter 33, subchapter 1, section 3318(a): Competitive Service, Selection from Certificate. Waived in its entirety to eliminate the requirement for selection using the “rule of three.” Veterans' preference provisions remain unchanged.
Chapter 33, section 3321: Competitive Service; Probationary Period. This section waived to the extent necessary to replace grade with “pay band level” and allow probationary periods of up to 3 years.
Chapter 33, section 3341: Details. Waived as necessary to extend the time limits for details.
Chapter 35, section 3502: Waived to the extent to allow for performance retention subgroups and 3502(c) waived in its entirety.
Chapter 41, section 4108(a)-(c): Waived to the extent necessary to require the employee to continue in the service of the covered organizations for the period of the required service and to the extent necessary to permit the Executive Director of the covered organizations, to waive in whole or in part a right of recovery.
Chapter 43, section 4302: Waived to the extent necessary to substitute “pay band” for “grade.”
Chapter 43, section 4303: Waived to the extent necessary to (1) substitute “pay band” for “grade” and (2) provide that moving to a lower pay band as a result of not receiving the general pay increase because of poor performance is not an action covered by the provisions of sections 4303(a)-(d).
Chapter 43, section 4304(b)(1) and (3): Responsibilities of the OPM. Waived in its entirety to remove the responsibilities of the OPM with respect to the performance appraisal system.
Chapter 45, section 4502: Limitation of cash awards to $10K. Waived to allow NAWCAD and NAWCWD Commanders to approve awards up to $25K.
Chapter 51 Classification, section 5101-5112: Purpose; Definitions, application; Determination of applicability; Basis for grading positions; Standards for classification of positions; Basis for classifying positions; Classification of positions; Classification of positions above GS-15; Review of classification of positions, Revocation and restoration of authority to classify positions, and General authority of the Office of Personnel Management:—Waived to the extent that white collar employees will be covered by pay banding and to the extent that classification appeals will be decided by
Chapter 53, sections 5301, 5302(1), (8) and (9), 5303, and 5304: Pay Comparability System. Waived to the extent necessary to allow (1) demonstration project employees to be treated as GS employees, (2) basic rates of pay under the demonstration project to be treated as scheduled rates of pay, and (3) the demonstration project pay system to be adjusted by the GS annual adjustments to pay schedules.
Chapter 53, section 5305: Special Pay Authority. Waived to the extent necessary to allow for use of a staffing supplement in lieu of the special pay authority.
Chapter 53, sections 5331-5336: GS Pay Rates. Waived in its entirety to allow for the demonstration project's pay banding system and pay provisions.
Chapter 53, sections 5361-5366: Grade and Pay Retention. Waived to the extent necessary to: (1) Replace “grade” with “pay band;” (2) allow demonstration project employees to be treated as GS employees; (3) provide that an employee on pay retention whose rating of record is “Unacceptable” is not entitled to 50 percent of the amount of the increase in the maximum rate of base pay payable for the pay band of the employee's position; (4) provide that pay retention does not apply to reduction in base pay due solely to the reallocation of demonstration project pay rates in the implementation of a staffing supplement; (5) allow no provision of grade or pay band retention under this demonstration project and (6) allow demonstration project employees receiving a staffing supplement to retain the adjusted base pay if the staffing supplement is discontinued or reduced. This waiver applies to ST employees only if they move to a GS-equivalent position within the demonstration project under conditions that trigger entitlement to pay retention.
Chapter 55, section 5542(a)(1)-(2): Overtime rates; computation. Waived to the extent necessary to provide that the GS-10 minimum special rate (if any) for the special rate category to which a project employee belongs is deemed to be the “applicable special rate” in applying the pay cap provisions in 5 U.S.C. 5542.
Chapter 55, section 5545(d): Hazardous duty differential. Waived to the extent necessary to allow demonstration project employees to be treated as GS employees.
Chapter 55, section 5547(a)-(b): Limitation on premium pay. Waived to the extent necessary to provide that the GS-15 maximum special rate (if any) for the special rate category to which a project employee belongs is deemed to be the “applicable special rate” in applying the pay cap provisions in 5 U.S.C. 5547.
Chapter 57, section 5753, 5754, and 5755: Recruitment and relocation, bonuses, incentives, and supervisory differentials. Waived to the extent necessary to allow employees and positions under the demonstration project to be treated as employees and positions under the GS.
Chapter 59, section 5941: Allowances based on living costs and conditions of environment; employees stationed outside continental U.S. or Alaska. Waived to the extent necessary to provide that cost-of-living allowances paid to employees under the demonstration project are paid in accordance with regulations prescribed by the President (as delegated to OPM).
Chapter 75, sections 7501(1), 7511(a)(1)(A)(ii), and 7511(a)(1)(C)(ii): Adverse Actions—Definitions. Waived to the extent necessary to allow for up to a three-year probationary period and to permit termination during the extended probationary period without using adverse action procedures for those employees serving a probationary period under an initial appointment except for those with veterans' preference.
Chapter 75, section 7512(3): Adverse actions. Waived to the extent necessary to replace “grade” with “pay band.”
Chapter 75, section 7512(4): Adverse actions. Waived to the extent necessary to provide that adverse action provisions do not apply to (1) conversions from GS special rates or NSPS Targeted Local Market Supplements to demonstration project pay, as long as total pay is not reduced and (2) reductions in pay due to the removal of a supervisory or team leader pay adjustment upon voluntary movement to a non-supervisory or non-team leader position.
Part 293, subpart D: Personnel Records. Employee Performance File System Records. Waived to the extent necessary to be consistent with the demonstration project's mission aligned objectives and compensation system and to allow definition and establishment of its automated system of records and retention requirements.
Part 300, sections 300.601 through 300.605: Time-in-Grade restrictions. Waived to eliminate time-in-grade restrictions in the demonstration project.
Part 308, sections 308.101 through 308.103: Volunteer service. Waived to allow for a Voluntary Emeritus Corps in addition to student volunteers.
Part 315, section 315.801(a), 315.801(b)(1), (c), and (e), and 315.802(a) and (b)(1): Probationary period and Length of probationary period. Waived to the extent necessary to allow for up to a three-year probationary period and to permit termination during the extended probationary period without using adverse action procedures for those employees serving a probationary period under an initial appointment except for those with veterans' preference.
Part 315, section 315.901: Statutory requirement. Waived to the extent necessary to replace “grade” with “pay band.”
Part 315, section 315.905 Length of the probationary period. Waived to the extent necessary to allow for a two-year supervisory/managerial probationary period.
Part 316, section 316.301: Purpose and duration. Waived to the extent necessary to allow for term appointments for more than four years.
Part 316, section 316.303: Tenure of term employees. Waived to the extent necessary to allow term employees to acquire competitive status.
Part 316, section 316.304: Trial Period. Waived to the extent necessary to allow for up to a three-year trial period.
Part 332, section 332.402: “Rule of three” will not be used in the demonstration project. When there are no more than 15 qualified applicants and no preference eligible, all eligible applicants are referred to the selection official without rating or rankings. Statutes and regulations covering veterans' preference are observed in the selection process and when rating and ranking are required.
Part 332, section 332.404: Order of selection from certificates. Waived to the extent necessary to eliminate the requirement for selection using the “rule of three.”
Part 335, section 335.103: Agency promotion programs. Waived to the extent necessary to extend the length of details and temporary promotions without requiring competitive procedures.
Part 337, section 337.101(a): Rating applicants. Waived to the extent necessary to allow referral without rating when there are 15 or fewer qualified candidates and no qualified preference eligibles.
Part 340, subpart A, subpart B, and subpart C: Other than Full-Time Career Employment. These subparts are waived
Part 351, section 351.401: Determining retention standing. Waived to the extent necessary to allow use of performance subgroups in determining retention standing.
Part 351, section 351.402(b): Competitive area. Waived to the extent necessary to allow separate competitive areas for demonstration and non-demonstration project employees and to allow separate competitive areas for each demonstration occupational family.
Part 351, section 351.403: Competitive level. Waived to the extent necessary to replace “grade” with “pay band” and to allow use of demonstration project criteria, such as specialty area code, to be used in the definition of competitive levels.
Part 351, section 351.501: Order of retention—competitive service. Waived as necessary to allow use of performance subgroups in determining retention standing and allow no additional years of service based on performance.
Part 351, section 351.502: Order of retention—excepted service. Waived as necessary to allow use of performance subgroups in determining retention standing and allow no additional years of service based on performance.
Part 351, section 351.504: Credit for performance. Waived as necessary to allow for use of performance subgroups rather than adding years of service based on performance.
Part 351, section 351.701: Assignment involving displacement. Waived to the extent that bump and retreat rights are limited to one pay band with the exception of 30 percent preference eligibles who are limited to two bands (or equivalent of five grades), and to limit the assignment rights of employees with an unacceptable current rating of record to a position held by another employee with an unacceptable rating of record.
Part 410, section 410.309: Agreements to continue in service. Waived to the extent necessary to allow the Executive Directors of the covered organizations to determine requirements related to continued service agreements.
Part 430, subpart B: Performance Appraisal for GS, Prevailing Rate, and Certain Other Employees. Waived to the extent necessary to be consistent with the demonstration project's mission aligned objectives and compensation system.
Part 430, section 430.208(a)(1) and (2): Rating Performance. Waived to allow presumptive ratings for new employees hired 90 days or less before the end of the appraisal cycle or for other situations not providing adequate time for an appraisal.
Part 432, Performance based reduction-in-grade and removal actions: Modified to the extent that an employee may be removed, reduced in pay band level with a reduction in pay, reduced in pay without a reduction in pay band level and reduced in pay band level without a reduction in pay based on unacceptable performance. Also, modified to delete reference to critical element. For employees who are reduced in pay band level without a reduction in pay, Sections 432.105 and 432.106(a) do not apply.
Part 432, section 432.102: Coverage. Waived to the extent that the term “grade” is replaced with “pay band.”
Part 432, section 432.104: Addressing unacceptable performance. References to “critical elements” are deleted as all elements are critical and adding that the employee may be “reduced in pay band level, or pay, or removed” if performance does not improve to an acceptable level during a reasonable opportunity period.
Part 432, section 432.105(a)(2): Proposing and taking action based on unacceptable performance: Waive “If an employee has performed acceptably for 1 year” to allow for “within two years from the beginning of a PIP.”
Part 451, subpart A, section 451.103(c)(2): Waived with respect to performance awards under the NAVAIR Extraordinary Achievement Allowance and demo incentive awards authority.
Part 451, subpart A, section 451.106 and 451.107: Waived to allow the NAWCAD and NAWCWD Commanders authority to grant special act awards to covered employees of up to $25,000.
Part 511, subpart A, subpart B, and subpart F: Classification within the General Schedule. Waived in its entirety.
Part 530, subpart C: Special Rate Schedules for Recruitment and Retention. Waived in its entirety to allow for staffing supplements.
Part 531, subpart B.: Determining Rate of Basic Pay. Waived to the extent necessary to allow for pay setting, including educational pay adjustments and pay for performance under the provisions of the demonstration project.
Part 531, subparts D and E: Within-Grade Increases, and Quality Step Increases. Waived in its entirety.
Part 531, subpart F: Locality-Based Comparability Payments. Waived to the extent necessary to allow (1) demonstration project employees, except employees in Pay Band VI of the Supervision and Management pay schedule, to be treated as GS employees and (2) base rates of pay under the demonstration project to be treated as scheduled annual rates of pay.
Part 536: Grade and Pay Retention. Waived to the extent necessary to (1) replace “grade” with “pay band;” (2) provide that pay retention provisions do not apply to conversions from GS special rates to demonstration project pay, as long as total pay is not reduced, and to movement from a supervisory position to a non-supervisory position, as long as total pay is not reduced; (3) allow demonstration project employees to be treated as GS employees; (4) provide that pay retention provisions do not apply to movements to a lower pay band as a result of not receiving the general increase due to an annual performance rating of “Unacceptable;” (5) provide that an employee on pay retention whose rating of record is “Unacceptable” is not entitled to 50 percent of the amount of the increase in the maximum rate of base pay payable for the pay band of the employee's position; (6) allow no provision of grade or pay band retention under this demonstration project; (7) provide that pay retention does not apply to reduction in base pay due solely to the reallocation of demonstration project pay rates in the implementation of a staffing supplement and (8) allow demonstration project employees receiving a staffing supplement to retain the adjusted base pay if the staffing supplement is discontinued or reduced. This waiver applies to ST employees only if they move to a GS equivalent position within the demonstration project under conditions that trigger entitlement to pay retention.
Part 550, sections 550.105 and 550.106: Bi-weekly and annual maximum earnings limitations. Waived to the extent necessary to provide that the GS-15 maximum special rate (if any) for the special rate category to which a project employee belongs is deemed to be the “applicable special rate” in applying the pay cap provisions in 5 U.S.C. 5547.
Part 550, section 550.703: Definitions. Waived to the extent necessary to modify the definition of “reasonable offer” by replacing “two grade or pay levels” with “one band level” and “grade or pay level” with “band level.”
Part 550, section 550.902: Definitions. Waived to the extent necessary to allow demonstration project employees to be treated as GS employees. This waiver does not apply to employees in Pay Band V of the S&E occupational family.
Part 575, subparts A, B, C, and D: Recruitment Incentives, Relocation Incentives, Retention Incentives. Waived to the extent necessary to allow
Part 591, subpart B: Cost-of-Living Allowance and Post Differential—Non-foreign Areas. Waived to the extent necessary to allow (1) demonstration project employees to be treated as employees under the GS and (2) employees in Band V of the S&E occupational family to be treated as ST employees for the purposes of these provisions.
Part 752, sections 752.101, 752.201, 752.301 and 752.401: Principal statutory requirements and Coverage. Waived to the extent necessary to allow for up to a three-year probationary period and to permit termination during the extended probationary period without using adverse action procedures for those employees serving a probationary period under an initial appointment except for those with veterans' preference.
Part 752, section 752.401: Coverage. Waived to the extent necessary to replace “grade” with “pay band,” and to provide that a reduction in pay band level is not an adverse action if it results from the employee's rate of base pay being exceeded by the minimum rate of base pay for his/her pay band.
Part 752, section 752.401(a)(4): Coverage. Waived to the extent necessary to provide that adverse action provisions do not apply to (1) conversions from GS special rates or NSPS Targeted Local Market Supplements to demonstration project pay, as long as total pay is not reduced and (2) movement from a supervisory pay band to a non-supervisory pay band as long as total pay is not reduced.
These are examples for illustration purposes only, the actual benchmarks may be different from what is shown here. These are an example showing a benchmark for each pay band level in an occupational family:
Level 3:
• With guidance, effectively achieved the stated objective.
• With guidance, organized and prioritized own tasks to deliver the objective, adjusting work plans and overcoming obstacles as necessary.
• Demonstrated high standards of personal and professional conduct and represented the organization or work unit effectively.
Level 5:
• Contributed results beyond what was expected; results were far superior in quality, quantity, timeliness and/or impact to the stated objective.
• Exhibited the highest standards of professionalism.
Level 3:
• Effectively achieved the stated objective, anticipating and overcoming significant obstacles. Adapts established methods and procedures when needed.
• Results were technically sound, accurate, thorough, documented, and met applicable authorities, standards, policies, procedures and guidelines.
• Planned, organized prioritized, and scheduled own work activities to deliver the objective in a timely and effective manner, making adjustments to respond to changing situations and anticipating and overcoming difficult obstacles as necessary.
• Demonstrated high standards of personal and professional conduct and represented the organization or work unit effectively.
Level 5:
• Contributed results beyond what was expected; results were far superior in quality, quantity, and/or impact to the stated objective to what would be expected at this level.
• Exhibited the highest standards of professionalism.
These are examples for illustration purposes only, the actual benchmarks may be different from what is shown here. These are an example showing benchmarks by career stage, which may cover multiple pay band levels in multiple occupational families:
Career Stage: Journey.
Objective Rating: 1.
Performance Standard:
• Failed to achieve all or part of the stated critical element; or
• Failed to provide products that were sound, accurate, thorough and documented, and regularly failed to meet applicable authorities, standards, policies, procedures and guidelines; or
• Failed to plan, organize, prioritize, and schedule own work activities to deliver the critical element in a timely and effective
• Demonstrated poor cooperation or inability to work with others.
Career Stage: Journey.
Objective Rating: 3.
Performance Standard:
• Effectively accomplished the stated critical element by achieving results that were technically sound, accurate, thorough, and documented and met applicable authorities, standards, policies, procedures and guidelines.
• Planned, organized, prioritized and scheduled own work activities to deliver the critical element in a timely and effective manner, making adjustments to respond to changing situations as necessary.
• Demonstrated high standards of teamwork and cooperation.
Career Stage: Journey.
Objective Rating: 5.
Performance Standard:
(Measured in addition to the above)
• Achieved outcomes and results that are far superior in quality, quantity, timeliness and/or impact to what would ordinarily be expected at this level.
• Accomplishments and outcomes were of such magnitude that they contributed to the organization exceeding its mission goals and objectives for the year.
• Persisted in overcoming obstacles and put forth extra effort to accomplish difficult assignments.
• Represented the organization or work unit effectively through model team cooperation.
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
This Notice identifies unutilized, underutilized, excess, and surplus Federal property reviewed by HUD for suitability for possible use to assist the homeless.
Juanita Perry, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 7262, Washington, DC 20410; telephone (202) 708-1234; TDD number for the hearing- and speech-impaired (202) 708-2565 (these telephone numbers are not toll-free), or call the toll-free Title V information line at 800-927-7588.
In accordance with 24 CFR part 581 and section 501 of the Stewart B. McKinney Homeless Assistance Act (42 U.S.C. 11411), as amended, HUD is publishing this Notice to identify Federal buildings and other real property that HUD reviewed in 2009 for suitability for use to assist the homeless. The properties were reviewed using information provided to HUD by Federal landholding agencies regarding unutilized and underutilized buildings and real property controlled by such agencies or by GSA regarding its inventory of excess or surplus Federal property.
In accordance with 24 CFR 581.3(b) landholding agencies are required to notify HUD by December 31, 2008, the current availability status and classification of each property controlled by the Agencies that were published by HUD as suitable and available which remain available for application for use by the homeless.
Pursuant to 24 CFR 581.8(d) and (e) HUD is required to publish a list of those properties reported by the Agencies and a list of suitable/unavailable properties including the reasons why they are not available.
Properties listed as suitable/available will be available exclusively for homeless use for a period of 60 days from the date of this Notice. Where property is described as for “off-site use only” recipients of the property will be required to relocate the building to their own site at their own expense. Homeless assistance providers interested in any such property should send a written expression of interest to HHS, addressed to Theresa Rita, Division of Property Management, Program Support Center, HHS, Room 5B-17, 5600 Fishers Lane, Rockville, MD 20857; (301) 443-2265. (This is not a toll-free number.) HHS will mail to the interested provider an application packet, which will include instructions for completing the application. In order to maximize the opportunity to utilize a suitable property, providers should submit their written expressions of interest as soon as possible. For complete details concerning the processing of applications, the reader is encouraged to refer to the interim rule governing this program, 24 CFR part 581.
For more information regarding particular properties identified in this Notice (